FCC Launches Proceeding on Restoring Net Neutrality Rules Reclassifying Broadband as Title II Telecommunications Service; Seeks Public Comment
Earlier today, the FCC voted along party lines to launch proceeding on restoring net neutrality rulemaking that had been previously repealed during the Trump administration. The FCC also will seek comment on proposals to reclassify broadband services as Title II Telecommunications Services. We covered the contents of the proposed rule in our previous client advisory. This significant development is expected to trigger a protracted legal and regulatory battle.
The Democratic-led commission voted 3-2 in favor of proposing rules initially introduced during the Obama-era FCC. These rules are designed to prevent internet service providers from engaging in practices such as slowing down, blocking, or prioritizing web traffic. The proposed rules would reclassify broadband service, subjecting it to Title II of the Communications Act. This reclassification may allow for greater regulatory oversight, treating broadband as a telecommunications service rather than its previous classification as a Title I information service.
This vote highlights the long-standing ideological divide within the FCC regarding the extent of regulation over internet service. This debate has persisted since the early 2000s and has become increasingly contentious over the past decade, leading to division within the commission.
Opponents of Thursday’s decision, mainly Republicans, argue that it will discourage investment by internet companies, which they assert has thrived over the past six years. In contrast, the Democratic majority at the FCC contends that the agency had “abdicated oversight” over crucial matters, ranging from consumer protection to public safety and national security when they repealed the Obama-era rules.
It is important to note that the current FCC was able to pass these rules following the recent confirmation of a fifth commissioner, Anna Gomez, providing Democrats with a majority. FCC Chair Jessica Rosenworcel stated, “In 2017, despite overwhelming opposition, the FCC repealed net neutrality and stepped away from its Title II authority over broadband… Today, we begin a process to make this right. We propose to reinstate enforceable, bright-line rules to prevent blocking, throttling, and paid prioritization. These rules are legally sustainable because they track those that were upheld in court in 2016 — from front to back.”
On the opposing side, FCC senior Republican Brendan Carr criticized what he termed “utility-style controls,” suggesting that they would impose rate regulation on the internet, reduce investment, and diminish the authority of the Federal Trade Commission in terms of consumer protection in the industry. Carr also contended that net neutrality under Title II reclassification may face challenges in the judicial review process, citing a notable shift in administrative law influenced by the U.S. Supreme Court’s decision in West Virginia v. Environmental Protection Agency.
Thursday’s vote witnessed Chair Jessica Rosenworcel, Commissioner Anna Gomez, and Commissioner Geoffrey Starks voting in favor, while Commissioner Brendan Carr and Commissioner Nathan Simington opposed the decision. This move initiates a period of public input that will extend until December 14, 2023, with responses due by January 17, 2024.
This development underscores the ongoing and contentious nature of the net neutrality debate. We will continue to monitor this situation and provide updates as it evolves.
If you have any questions or require further information, please do not hesitate to reach out to us.
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