Draft Net Neutrality NPRM Largely Mirrors 2015 Language

The FCC plans to remain open until Oct. 20 in the event of a government shutdown, it told employees in an email Thursday that was obtained by Communications Daily. That timing means the agency will still be able to hold the Oct. 19 open meeting and vote on the net neutrality NPRM and other items in the event of a shutdown. The agency’s appropriation runs out Saturday, but “based on other available funding, the FCC plans to remain open for business and pay all employees and contractors through the close of business on Friday, October 20, 2023,” the email said. “Employees and contractors therefore should continue to work as scheduled through October 20.” The agency has been able to keep staff in the building while other federal agencies were furloughed during past government shutdowns using funds from fees and leftover prior year funding. An FCC spokesperson confirmed that the email was sent out but didn’t comment further on the agency’s plans. Employees were also told that the FCC will notify them in advance if furlough will be required after Oct. 20.

The 2023 draft lifts some language largely verbatim from the 2015 net neutrality order, such as background about the agency’s 2005 internet policy statement and the precepts in its 2010 open internet order. The “scope of reclassification” portion of the draft largely borrows from 2015 definitional language about fixed and mobile broadband internet access services. The draft’s section about classifying mobile BIAS as a commercial mobile service also uses verbatim language from 2015. The conduct-based rules are practically identical.

The item proposes to adopt a "bright-line rule prohibiting ISPs from blocking lawful content, applications, services, or non-harmful devices." The proposed rules would not apply to internet traffic exchange. The commission would seek comment on enforcement of any open internet rules, including the use of advisory opinions and whether to re-establish a formal complaint process.

The 2023 draft repeatedly harkens back to the 2015 order. 2015 “broadly granted forbearance” and the agency “generally propose[s]” to do likewise except in the case of “statutory authorities that could enable the Commission to advance the Act’s goals of national security and public safety,” the NPRM says. It says the 2023 proposal should withstand First Amendment review and the net neutrality proposal is a reasonable exercise of the agency’s Section 706(a) authority “for the same reasons” laid out in the 2015 order. Section 706 of the Communications Act covers broadband deployment.

The draft repeatedly repudiates the 2017 “restoring internet freedom order” in which the agency, now with a Republican majority, reversed the 2015 order. The 2017 order ignored harms discussed in the 2015 order and “gave inadequate consideration to the effects of the Commission’s consistent efforts to apply and enforce the open Internet standards since early 2005, which we believe deterred harmful ISP conduct,” the draft says. The draft also raises concerns about allowing a patchwork of state regulations and would seek comment on the commission's preemption authority (see 2309280056). The 2017 order resulted in “the very patchwork of state-by-state open Internet requirements it sought to avoid” and that “may be burdensome for ISPs, particularly small ISPs, thus hindering the broadband market,” it says.

More Criticism

Title II net neutrality “prevents last-mile ISPs from being able to charge large originators of traffic, like streaming platforms, any transit fees, the desirability of which is a question of pure economics, not free speech,” Commissioner Simington said, posted in Thursday’s Daily Digest. Net neutrality also “makes any attempt by ISPs to use their immense infrastructure to provide enhanced services, like edge computing that could compete with Big Tech cloud services, legally suspect and therefore less likely to be undertaken,” he said: Title II also “casts a long shadow on ISPs, with the ever-present possibility of rate regulation stifling investment and innovation, eliminating ISPs as players who can compete for a bigger share of the digital economy.”

In the six years since the 2015 net neutrality rules were repealed, none of the predicted problems has occurred, Simington said. “A minimal regulation or law preventing ISPs from engaging in censorship, whether promulgated by the FCC or by Congress, is worth considering,” noting the threat of new rules may be a reason there have no reported abuses in the U.S. by ISPs. Abuses by ISPs have occurred in Europe, he said.

Simington wants more focus on the free speech challenges posed by tech companies and social media platforms. “I’m not surprised that some of my colleagues, moved by the hyperbole of previous net neutrality debates, feel that they have no choice but to reimpose Title II net neutrality rules, but I am disappointed that they have shown no interest whatsoever in bringing some of those same net neutrality principles to Big Tech platforms, whose control of internet infrastructure and the digital economy is in fact much greater than that of ISPs and who have a much greater demonstrated willingness to abuse it,” he said.

Title II classification "puts achieving our national goal of universal connectivity at serious risk," said USTelecom CEO Jonathan Spalter Thursday: "Retrofitting outdated rules onto today’s competitive broadband networks is simply the wrong approach. Congress must step in to end this ludicrous regulatory rinse and repeat cycle.”