In a major victory for cable companies and telcos that raises concerns about the Federal Communications Commission's regulatory authority in the wake of recent U.S. Supreme Court rulings, the 6th U.S. Circuit Court of Appeals has struck down the agency’s net neutrality rules.

The rules require broadband operators to treat all internet traffic equally and banned them from giving preferential treatment to some sites by speeding up or slowing down consumer access.

The FCC had implemented net neutrality rules under former President Barack Obama, which were then dropped during the Trump administration. Last April the FCC voted 3-2, along party lines, to reinstate the rules in its "Safeguarding and Securing the Open Internet Order.” Industry groups then sued the FCC to block their implementation.

The 6th Circuit justified its decision to strike down the rules in part by referring to the U.S. Supreme Court’s decision last June in Loper Bright Enters. v. Raimondo. That ruling rejected the longstanding Chevron doctrine giving regulatory agencies a fair amount of latitude in implementing their rules.

The reversal highlights the growing challenges the FCC is likely to face in the wake of the Loper Bright ruling.

“[U]nlike past challenges that the D.C. Circuit considered under Chevron, we no longer afford deference to the FCC's reading of the statute. Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244, 2266 (2024) (overruling Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984) ) … Using ‘the traditional tools of statutory construction,’ id., we hold that Broadband Internet Service Providers offer only an ‘information service’ under 47 U.S.C. § 153(24), and therefore, the FCC lacks the statutory authority to impose its desired net-neutrality policies through the ‘telecommunications service'’ provision of the Communications Act, id. § 153(51). Nor does the Act permit the FCC to classify mobile broadband—a subset of broadband Internet services—as a ‘commercial mobile service’ under Title III of the Act (and then similarly impose net-neutrality restrictions on those services). Id. § 332(c)(1)(A). We therefore grant the petitions for review and set aside the FCC's Safeguarding Order.”

Following the ruling, FCC chair Jessica Rosenworcel said in a statement: “Consumers across the country have told us again and again that they want an internet that is fast, open and fair. With this decision it is clear that Congress now needs to heed their call, take up the charge for net neutrality and put open internet principles in federal law.”

In a statement commissioner Brendan Carr applauded the ruling, saying, “I am pleased that the appellate court invalidated President Biden’s Internet power grab by striking down these unlawful Title II regulations. But the work to unwind the Biden Administration’s regulatory overreach will continue.”

“Today’s decision is a good win for the country, Carr also noted. “Over the past four years, the Biden Administration has worked to expand the government’s control over every feature of the Internet ecosystem.”

“President Biden’s decision to impose these Title II regulations represented a break from the bipartisan consensus established by a Republican Congress and a Democrat President and enshrined in law nearly thirty years ago—a consensus that provided a stable regulatory framework that allowed the Internet in America to flourish,” he said.

The lengthy full statement from Carr can be found here.

WASHINGTON, D.C.—The Federal Communications Commission and Federal Trade Commission have signed a Memorandum of Understanding to coordinate consumer protection efforts. The new MOU follows the FCC’s restoration of Net Neutrality and the FCC’s recent decision to reclassify broadband service as a Title II telecommunications service.  

“Consumers do not want their broadband provider cutting sweetheart deals, with fast lanes for some services and slow lanes for others. They do not want their providers engaging in blocking, throttling, and paid prioritization,” said FCC chairwoman Jessica Rosenworcel.  “If consumers have problems, they expect the nation’s expert authority on communications to be able to respond. Now we can. In partnership with our colleagues at the FTC, we will protect consumers and ensure internet openness, defend national security, and monitor network resiliency and reliability. I thank Chair Khan and her team for their leadership and cooperation in protecting consumers.”

“The FTC is squarely focused on protecting Americans from illegal business tactics, from tackling AI-enabled voice cloning fraud to fighting the scourge of robocalls. We look forward to continuing to work in close partnership with the FCC,” said FTC Chair Lina M. Khan. “Effective law enforcement requires targeting the upstream actors enabling unlawful conduct, and having the FCC as a partner here will be critical.”

Under the agreement the FCC said that it will return to its traditional position as the enforcer of essential rules as they apply to broadband service providers, a critical part of telecommunications infrastructure. This includes prohibitions against blocking, throttling, and paid prioritization practices; transparency requirements; consumer protections related to internet service outages; and basic consumer privacy protections which have long applied to phone networks.  

The two regulatory agencies said that the new MOU terminates the 2017 Restoring Internet Freedom FCC-FTC Memorandum of Understanding.

It also clarifies that commitments under prior MOUs, including the 2003 Memorandum of Understanding regarding Telemarketing Enforcement, as well as the 2015 FCC-FTC Consumer Protection Memorandum of Understanding that remain in effect and are not altered or invalidated by the new MOU, the agencies said. 

The FCC and the FTC also reported that they will continue to share legal, technical, and investigative expertise and experience. 

WASHINGTON, D.C.—As expected, the FCC has voted 3-2 to restore net neutrality rules over broadband providers in a move that will likely prompt extensive litigation from cable operators and other groups opposing the decision. 

In passing the regulation, FCC chairwoman has argued that the return of net neutrality protections would once again prevent broadband service providers from blocking traffic, slowing down content, or creating pay-to-play internet fast lanes. 

In addition it would provide oversight over broadband outages, improve cybersecurity of broadband networks and provide oversight, not control because FCC has no authority to, and no interest in, policing online speech. Commissioners supporting the rules have also argued that it would not limit Congress’s ability to provide closer oversight over “big tech.” 

Net neutrality rules were first implemented in 2015 by the FCC during the Obama administration and repealed in 2017 by the FCC during the Trump administration. 

Prior to the vote FCC Commissioner Brendan criticized the plan, saying the decision to impose Title II regulations on broadband providers it would reduce investment in broadband services, reduce innovation and fetter the internet with unnecessary regulations.  

“The free and open Internet has flourished precisely because it has been unfettered by these types of command and control regulations and bureaucratic micromanagement,” Carr said. “Indeed, while the FCC first applied Title II to high-speed Internet back in 2015 at President Obama’s direction, we quickly ended that failed experiment in 2017.”

“Six years ago, Americans lived through one of the greatest hoaxes in regulatory history,” he noted. “In 2017, when the FCC overturned the Obama Administration’s failed, two-year experiment with Title II regulation, proponents predicted “the end of the Internet as we know it” and that “you’ll get the Internet one word at a time.”  None of the Apocalyptic predictions came to pass. Instead, Americans benefited from lower prices, faster speeds, increased competition, and accelerated Internet builds.  The FCC’s latest set of claims fare no better than those trotted out back then. That’s why it invents so many new justifications.  They are throwing everything they can think of against the wall—but none of it sticks.”

Carr also stressed that “After the FCC imposed Title II rules on the Internet back in 2015, many broadband providers reduced their investments and halted the expansion of their networks.  Indeed, it was the only period of time outside of a recession where broadband investment declined. And after the FCC repealed those rules in 2017, broadband providers set new records for building out Internet infrastructure."

A number of other groups also reacted to the decision, both favorably and in opposition. 

The Free Press said “the decision is a major victory for the public interest: Title II authority empowers the FCC to hold companies like AT&T, Comcast, Spectrum and Verizon accountable for a wide range of harms to internet users across the United States.”

Free Press Co-CEO Craig Aaron added: “Everyone should celebrate today’s FCC vote. Public support for Net Neutrality is overwhelming, and people understand why we need a federal watchdog to protect everyone’s access to the most essential communications platform of our time. The FCC heard the outcry and did its job: delivering on promises to stand with internet users and against big telecom companies and their trade groups, which have spent untold millions of dollars to spread lies about Net Neutrality and thwart any oversight or regulation."

Michael Powell, president & CEO of NCTA – The Internet & Television Association issued a statement saying “Today’s action is the latest installment of a long-running campaign to establish FCC control of the internet. This is a politically-motivated reversal of prior law, not an exercise in evidence-based rulemaking. There is no evidence of a problem to be solved. We have a national interest in preserving a dynamic, innovative internet. Consumers were able to work and learn from home during the pandemic because broadband providers were free to invest in and improve their networks without the drag of public utility regulation. Public utilities are notorious for chronic underinvestment and glacial innovation. The FCC’s action uses our nation’s aging utilities and crumbling infrastructure as the model for today’s internet.”

"The good news is that the FCC’s action will be overturned in court,” he added. “Congress has always been the appropriate forum to resolve these issues. We can only hope that the damage done to our vibrant internet ecosystem in the meantime will be limited."

U.S. Chamber of Commerce Technology Engagement Center senior vice president Jordan Crenshaw said “Imposing a flawed, pre-television era regulatory structure on broadband will do little to close the digital divide. The Commission’s decision to micromanage the Internet through Title II regulations will only deter the investments and innovation necessary to connect all Americans.”

More to come as reactions pour in. 

The Federal Communications Commission has announced the agenda for an Open Meeting on Thursday, April 25, 2024 that will include votes on Net Neutrality Rules and implementation of National Suicide Hotline Act of 2018 as well as votes on a number of unspecified enforcement actions. 

The Net Neutrality Rules would bring broadband services under Title II regulation, a move that has been adamantly opposed by most cable and telco operations, but the FCC has said the rules would not mean that internet access would taxed in the way that phone services from telcos regulated by Title II currently are. It is likely that any new rules would lead to litigation that would delay their implementation for years. 

The FCC described the agenda items as follows:  

• Implementation of the National Suicide Hotline Act of 2018 (WC Docket No. 18-336).  The Commission will consider a Second Further Notice of Proposed Rulemaking, which would propose to require the implementation of one or more georouting solutions for wireless calls to the 988 Suicide & Crisis Lifeline to ensure that calls are routed based on the geographic location for the origin of the call, rather than the area code and exchange associated with a wireless phone.
• Safeguarding and Securing the Open Internet (WC Docket No. 23-320); Restoring Internet Freedom (WC Docket No. 17-108). The Commission will consider a Declaratory Ruling, Order, Report and Order, and Order on Reconsideration that would reestablish the Commission’s authority to protect consumers and safeguard the fair and open Internet by classifying broadband Internet access service as a telecommunications service and classifying mobile broadband Internet access service as a commercial mobile service; exercising broad and tailored forbearance; and reinstating straightforward, clear rules to ensure Internet openness.

WASHINGTON, D.C.—FCC Chairwoman Jessica Rosenworcel has announced that the Commission will vote during its April Open Meeting on April 25 to restore Net Neutrality, which she said would bring back a national standard for broadband reliability, security, and consumer protection. 

If adopted, the proposal would ensure that broadband services are treated as an essential resource deserving of FCC oversight under Title II authority, Rosenworcel said. 

Broadband providers, the wireless industry, cable operators and telcos have vigorously opposed the effort to regulate broadband services under Title II authority.  It has also been criticized by the FCC's Republican commissioners. 

“The pandemic proved once and for all that broadband is essential,” she said. “After the prior administration abdicated authority over broadband services, the FCC has been handcuffed from acting to fully secure broadband networks, protect consumer data, and ensure the internet remains fast, open, and fair.  A return to the FCC’s overwhelmingly popular and court-approved standard of net neutrality will allow the agency to serve once again as a strong consumer advocate of an open internet.”

More specifically, the Rosenworcel argued that if adopted, the FCC proposal would:

• Return A Popular Net Neutrality Protections. The FCC would once again play a key role in preventing at the federal level broadband providers from blocking, slowing down, or creating pay-to-play internet fast lanes, the FCC said.  
• Provide Oversight Of Broadband Outages – When households and businesses lose internet service, consumers often expect that the FCC might either be able to help the restoration or at least have information about the outage.  By restoring the FCC’s Title II authority over internet service providers, the FCC will bolster its ability to require these companies to address internet outages.  Without such authority, the FCC cannot require companies to report broadband outages, cannot collect outage data, and lacks the authority to even consider ways that it can help protect against and recover from internet service outages. 
• Boost Security Of Broadband Networks – In this digital age, there are new and emerging digital threats.  Without broadband oversight, the FCC is unable to fully monitor and respond to such national security concerns.  For example, without reclassification, the FCC is limited in its authority to direct foreign-owned companies deemed to be national security threats to discontinue any domestic or international broadband services under Sec. 214 – as the agency has done with telephone services.  In addition, without reclassification, the FCC has limited authority to incorporate updated cybersecurity standards into network policies.  
• Increase Consumer Protections – Net Neutrality protections would increase the tools the FCC has available to protect consumer data and respond to evolving consumer threats.  Updated rules could mean broadband providers could not sell your location data, among other sensitive information.  This would empower the agency to protect consumers from other harmful practices.
• Restore A Widely Accepted National Standard – When the previous FCC stepped back from Net Neutrality protections, the court said states could step in.  Despite these efforts by individual states to provide robust oversight in response to the prior administration’s retreat from authority, we need a national standard to keep internet access fast, open, and fair.  A national standard is also broadly popular: eighty percent of Americans support open internet policies, the FCC said in a release announcing the vote. 

Those arguments have been challenged by broadband providers, cable companies, telecos and the wireless industry in filings with the FCC opposing Title II regulation of the internet. 

The FCC said that the chairwoman will circulate her proposal to her fellow Commissioners for their review.  As is the general practice, a public draft of the proposal – officially a Declaratory Ruling, Order, Report and Order, and Order on Reconsideration – will be made public on Thursday on FCC.gov.  At the Commission’s April 25 Open Meeting, the Commissioners will consider and vote on the proposal.  The meeting will be open to the public and streamed live at www.fcc.gov/live. 

In February, 2024, the FCC announced that the Affordable Connectivity Program (ACP), which has provided affordable internet services to households that could otherwise not afford them, will wind down unless Congress acts to provide additional funding. 

Originally part of the bipartisan Infrastructure bill that was passed by Congress in 2021, the ACP delivers internet service financial assistance to disadvantaged households in rural and depressed urban areas. These services were lifelines  during the Covid pandemic and have remained so, given the move to remote work and the need for internet connectivity to sustain gainful employment. 

Pleading the case for ACP continuance, FCC Chairwoman Jessica Rosenworcel urged Congress to approve additional funding for ACP last month. If new funding is not approved, the  program will terminate in April. 

The stakes are high—failure to sustain this program will have dire effects on underserved families that depend on internet service as much as they rely on electricity, gas and other household utilities.  

Writing to the Senate Committee on Commerce, Science and Technology on March 4, Rosenworcel stated,“Prior to participating in the [ACP] program, 68 percent of ACP households had inconsistent connectivity or zero connectivity, and….“more than 75% of ACP households expect their service will be disrupted if the ACP ends because they will need to change their plans or stop internet service entirely.…  I believe we have come too far with the ACP to turn back and lose the gains we have made connecting so many households across the country.” 

To address the problem, House bill HR6929—introduced in January with bipartisan support—extends the ACP with $7 billion in new funding, so Rosenworcel’s letter is an act of well-timed urgency.

Internet as a Household Utility
Heat, water and electricity have always been acknowledged as baseline household shelter needs—so why not internet? This has been an ongoing debate that began in 2015, when the Obama administration established the concept of “net neutrality,” which basically came down to “Internet for all”—without preferential treatment from internet service providers for some segments of the population over others.

Net neutrality  was subsequently overturned by the Trump administration in 2018, when the FCC ruled that internet service providers indeed had the right to decide who gets premium Internet service and content, and who doesn’t. 

Then in 2021, the Biden administration reinstated net neutrality by issuing an executive order. The order was followed with a bipartisan infrastructure bill that included a provision for the ACP, which ensured financial assistance to disadvantaged constituencies so they could obtain adequate Internet service in their households. This week the FCC plans to approve a measure to reinstate net neutrality.

When net neutrality was eliminated in 2018, the New York Times published a story about rural Ferry County in Northwestern Washington state. Ferry County is largely forest land, and spans 22,000 square miles. If residents wanted to access the internet, they had to go to the nearest public library—a situation that  the Times described  as “roughly 7,500 residents of this county, which is rich in natural beauty but internet-poor.”

Today, 93% of rural households have internet access. Internet service, often facilitated by the ACP, has made a difference in their quality of life.

“We join in the optimism that this period of unprecedented investment in American broadband represents,” said Tom Ferree, Chairman & CEO of Connected Nation.  “Indeed, history is watching, and therefore it is critical that every effort be made to ensure that this unique moment is not squandered but truly delivers on the promise of providing fast, affordable, reliable, low-latency Internet access to all Americans.”

The Impact of the Digital Divide
Just as rural and disadvantaged urban households have been sustained by ACP support, the program has also benefited broadcasters and digital content purveyors, which  have been able to reach larger audiences with their video content. At the same time, however, the digital divide has shifted—today the digital divide is as much about content affordability as much as it is internet access. 

Experiencing price pressures from every direction,  consumers want to see more economical video content options—but cable tv providers have  moved instead in the opposite direction by continuing to double down with price increases that have outperformed inflation.

The end result has seen consumers moving away from cable and onto internet-based content streaming platforms that offer more flexibility, including the ability for consumers to  control their own spend. This has generated a global video streaming market that has a projected CAGR of 19.3% from 2023-2030. 

What this means is that even if the ACP obtains new funding and households in all areas continue to enjoy Internet access that is affordable, the digital divide battle of affordability will continue to  be fought in the trenches of affordable video content for consumers, such as the ability to make discretionary content streaming choices that fit consumers’ budgets. Given this, what steps can broadcasters and digital content purveyors take now to obtain maximum profitability and to reach the most consumers?

2024’s Digital Divide Strategies
To navigate the new digital divide of content affordability, the keyword for broadcasters and digital content providers in 2024 is agility—in pricing and in delivery.

So far in 2024, 99% of U.S. consumers are paying for at least one streaming service. However, 45% acknowledged that they canceled at least one streaming service in the past year because the service became too expensive. 

Broadcasters have responded with a plethora of viewing options with varying price points that consumers can choose from.

(Read: ATSC 3.0 Holds Key to Educational Success in Stay-At-Home Era)

“[Broadcasters] are the ultimate Swiss Army Knife of content distribution,” said Sam Metheny, NAB CTO and EVP of NAB.  “First and foremost, they continue to transmit free, over the air, high-definition video. They are also available via cable, satellite, streaming services, and direct-to-consumer through their own apps, web sites, and streaming channels.  This diverse distribution model meets consumers where they are and enables viewers to access broadcaster content on their own terms.”

24/7 low-latency internet is also a requirement.

“In many cases broadcasters are adopting and leveraging cloud, virtual, and SaaS models, which provide greater flexibility for productions,” said Metheny.  “These can reduce CAPEX, and may also reduce OPEX depending on how they are used.”

The hope is that with more flexible content choices and delivery options, broadcasters and video content providers can reduce costs and make progress with digital divide content affordability with consumers in all demographics—with the end results of revenue and market share growth.

Metheny is bullish on this prospect.

“[We see] broadcasters embracing NextGenTV, or ATSC 3.0, which now reaches over 75% of the country,” he said. “This advanced and innovative broadcasting technology allows for more robust, interactive content delivery, personalized services and improved audio and video quality. Because the new technology combines the best features of broadcast television and broadband, NextGen TV allows local stations to better personalize their broadcasts with information and interactive features so viewers can get the content and features most relevant to them.”

WASHINGTON, D.C.—As expected the FCC voted to move towards restoring net neutrality rules during its October open meeting on October 19 in a three to two vote along party lines.  

The vote to approve the Notice of Proposed Rulemaking will allow the public to comment on the proposal before the FCC crafts the final rules, which are expected to draw legal challenges.

FCC chair Jessica Rosenworcel proposed reinstating the rules at the end of September following the swearing in of commissioner Anna Gomez, which broke the longstanding two to two deadlock on the Commission. 

The proposal to restore net neutrality rules initially drew mixed reviews. The NCTA, FCC commissioner Carr and others opposed the idea, which was applauded by Common Cause, Democratic lawmakers and others.

WASHINGTON, D.C.—The Federal Communications Commission has announced that the agenda for its October Open Meeting on Thursday, October 19, 2023 will include votes on its controversial plans for net neutrality, as well as votes on new rules for wireless emergency alerts, improved video accessibility, the E-Rate program for schools and libraries, the unlicensed use of 6 GHz band and other issues. 

The meeting is scheduled to commence at 10:30 a.m. in the Commission Meeting Room of the Federal Communications Commission, 45 L Street, N.E., Washington, D.C. and will be streamed live at  www.fcc.gov/live and on the FCC’s YouTube channel.

The FCC described the agenda items as follows:  

• Safeguarding and Securing the Open Internet  (WC Docket No. 23-320). The Commission will consider a Notice of Proposed Rulemaking that proposes to reestablish the Commission’s authority over broadband Internet access service by classifying it as a telecommunications service under Title II of the Communications Act, which would allow the Commission to protect consumers by issuing straightforward, clear rules to prevent Internet service providers from engaging in practices harmful to consumers, competition, and public safety; establish a uniform, national regulatory approach rather than disparate requirements that vary state-by-state; strengthen the Commission’s ability to secure communications networks and critical infrastructure against national security threats; and enable the Commission to protect public safety during natural disasters and other emergencies. 
• Modernizing the E-Rate Program for Schools and Libraries (WC Docket No. 13-184). The Commission will consider a Declaratory Ruling that would clarify that the use of Wi-Fi on school buses is an educational purpose and the provision of such service is therefore eligible for E-Rate funding. 
• Broadband Connectivity and Maternal Health— Implementation of the Data Mapping to Save Moms’ Lives Act (GN Docket No. 23-309). The Commission will consider a Notice of Inquiry that will seek comment on its proposed plan to improve and enhance maternal health data in the Mapping Broadband Health in America platform, in order to ensure that future updates to the platform reflect input from stakeholders and other interested parties and improves the user experience. The platform was updated in June 2023 to incorporate publicly available data on maternal mortality and severe maternal morbidity pursuant to the Data Mapping to Save Moms’ Lives Act. 
• Unlicensed Use of the 6 GHz Band (ET Docket No. 18-295); Expanding Flexible Use in Mid-Band Spectrum Between 3.7 and 24 GHz (GN Docket No. 17-183). The Commission will consider a Second Report and Order that would expand unlicensed use of the 6 GHz band by permitting very low power devices to operate in two sub-bands, a Second Further Notice of Proposed Rulemaking that would propose to expand very low power device operations to the remainder of the band, and a Memorandum Opinion and Order that would address a remand from a court challenge of a previous decision in the docket. 
• Connect America Fund (WC Docket No. 10-90); Connect America Fund – Alaska Plan (16-271); Universal Service Reform – Mobility Fund  (WT Docket No. 10-208); ETC Annual Reports and Certifications (WC Docket No. 14-58); Telecommunications Carriers Eligible to Receive Universal Service Support (WC Docket No. 09-197). The Commission will consider a Notice of Proposed Rulemaking seeking comment on the use of high-cost program funding to continue supporting fixed and mobile services in Alaska. The accompanying Report and Order makes administrative changes to streamline high-cost program rules. 
• Wireless Emergency Alerts (PS Docket No. 15-91); Amendments to Part 11 of the Commission’s Rules Regarding the Emergency Alert System (PS Docket No. 15-94). The Commission will consider a Report and Order that would improve Wireless Emergency Alerts by making WEA messages available in additional languages, including American Sign Language (ASL); supporting maps that show the location of an emergency; making it easier to conduct public-facing WEA performance and public awareness tests; and providing alert originators and members of the public with access to information about where and how WEA is available within their communities. 
• Video Description: Implementation of the Twenty-First Century Communications and Video Accessibility Act of 2010 (MB Docket No. 11-43). The Commission will consider a Second Report and Order that will enhance support for individuals who are blind or visually impaired by expanding audio description requirements to additional market areas. The Order would help ensure that a greater number of individuals who are blind or visually impaired can be connected, informed, and entertained by television programming. 

WASHINGTON D.C.—The Federal Communications Commission has issued a tentative agenda for the Thursday Oct. 19 2023 Open Meeting that includes votes on proposed Net Neutrality rules, use of the 6 GHz band, new rules for video accessibility and wireless emergency alerts. 

The Oct. 19 meeting could be impacted by the increasing likelihood of a government shutdown scheduled to take place on Oct. 1 if Congress is unable to pass new funding. The FCC’s plans for a shutdown include keeping 236 employees working to perform essential services and furloughing its remaining 1,235 full time employees. More details on the FCC’s plans for the shutdown are available here and here. 

If the meeting goes ahead as scheduled, the Commission will consider a Notice of Proposed Rulemaking that proposes to reestablish the Commission’s authority over broadband Internet access service by classifying it as a telecommunications service under Title II of the Communications Act. 

The FCC said that would allow the Commission to protect consumers by issuing straightforward, clear rules to prevent Internet service providers from engaging in practices harmful to consumers, competition, and public safety; establish a uniform, national regulatory approach rather than disparate requirements that vary state-by-state; strengthen the Commission’s ability to secure communications networks and critical infrastructure against national security threats; and enable the Commission to protect public safety during natural disasters and other emergencies. 

The Full Notice of Proposed Rulemaking on net neutrality is available here. 

During the meeting, the FCC said it would also consider: 

• Unlicensed Use of the 6 GHz Band - The Commission will consider a Second Report and Order that would expand unlicensed use of the 6 GHz band by permitting very low power devices to operate in two sub-bands, a Second Further Notice of Proposed Rulemaking that would propose to expand very low power device operations to the remainder of the band, and a Memorandum Opinion and Order that would address a remand from a court challenge of a previous decision in the docket. (ET Docket No. 18-295; GN Docket No. 17-183)
• Accessible Video Programming – The Commission will consider a Second Report and Order that will enhance support for individuals who are blind or visually impaired by expanding audio description requirements to additional market areas. The Order would help ensure that a greater number of individuals who are blind or visually impaired can be connected, informed, and entertained by television programming. (MB Docket No. 11-43)
• Improving Wireless Emergency Alerts – The Commission will consider a Report and Order that would improve Wireless Emergency Alerts by making WEA messages available in additional languages, including American Sign Language (ASL); supporting maps that show the location of an emergency; making it easier to conduct public-facing WEA performance and public awareness tests; and providing alert originators and members of the public with access to information about where and how WEA is available within their communities. (PS Docket Nos. 15-91, 15-94)
• School Bus Wi-Fi Declaratory Ruling – The Commission will consider a Declaratory Ruling that would clarify that the use of Wi-Fi on school buses is an educational purpose and the provision of such service is therefore eligible for E-Rate funding. (WC Docket No. 13-184)
• Broadband Connectivity and Maternal Health; Updating the Mapping Platform – The Commission will consider a Notice of Inquiry that will seek comment on its proposed plan to improve and enhance maternal health data in the Mapping Broadband Health in America platform, in order to ensure that future updates to the platform reflect input from stakeholders and other interested parties and improves the user experience.  The platform was updated in June 2023 to incorporate publicly available data on maternal mortality and severe maternal morbidity pursuant to the Data Mapping to Save Moms’ Lives Act. (GN Docket No. 23-309)
• Support for Alaska Connectivity – The Commission will consider a Notice of Proposed Rulemaking seeking comment on the use of high-cost program funding to continue supporting fixed and mobile services in Alaska.  The accompanying Report and Order makes administrative changes to streamline high-cost program rules. (WC Docket Nos. 10-90, 16-271, WT Docket No. 10-208)

Open Meetings are streamed live at www.fcc.gov/live.

WASHINGTON, D.C.—A second Republican appointed FCC commissioner has expressed doubts about the new FCC proposal to revive net neutrality rules by reclassifying broadband as a Title II service.

In a statement Commissioner Nathan Simington noted that "it has now been nearly six years since we repealed the net neutrality rules, and as far as I know, no one has died yet, nor have any other of the solemnly predicted catastrophes come to pass."

Simington also joined Commissioner Brendan Carr in expressing some doubts about the use of Title II to rein in potential abuses by ISPs but focused much of his attention on big tech companies who would profit from the revival of net neutrality rules. 

These big tech companies have funded “an obsession” with net neutrality that obscured the real issue, which is an attempt by big tech “to monopolize…the internet economy” and make sure “they and only they are allowed to reap the massive profits of the internet ecosystem," Simington said in a statement. 

The misleading net neutrality debate around “free speech was just the public front for what was really a campaign of industrial lawfare,” by big tech and large streaming companies, he argued. 

“Net neutrality has become an obsession,” Simington wrote. “Big Tech-funded hysteria turned this weedy competition law debate into a cause célèbre and the FCC’s best known policy issue. In their original push, net neutrality activists portrayed it as the free speech battle of our time, as the only way to prevent greedy ISPs from making deals in smoke-filled rooms to censor the internet. Of course, it was never really about free speech for Big Tech companies. To them, Title II net neutrality was about making sure that they, and only they, were allowed to reap the massive profits of the internet ecosystem, an ecosystem that could not exist without the hundreds of billions of dollars invested in deploying broadband over the decades. Unhappy with merely monopolizing various sectors of the internet economy, the Big Tech giants needed to make sure that no one above or below them in the supply chain could earn a fair share of those massive profits. That meant getting the FCC to take all leverage and ability to innovate away from the ISPs, just like it meant anticompetitive practices in other areas, like illegally colluding to keep employee salaries low.”

In the statement, Simington stressed that net neutrality rules prevent ISPs from being able to charge big tech companies and other “large originators of traffic, like streaming platforms, any transit fees, the desirability of which is a question of pure economics, not free speech. Second, it 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. And third, Title II 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. Free speech was just the public front for what was really a campaign of industrial lawfare.”

“It has now been nearly six years since we repealed the net neutrality rules, and as far as I know, no one has died yet, nor have any other of the solemnly predicted catastrophes come to pass,” Simington concluded. “But what has happened is a dramatic and alarming increase in political censorship—not by ISPs, who have been conspicuous so far in their neutrality—but by social media platforms. The leaders of Big Tech companies have anointed themselves the arbiters of which ideas are allowed to be expressed and which are not. These companies are, without a doubt, the biggest threat against freedom of speech that our country has faced in decades.”

“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 wrote. 

“There are [a] lot of questions, such as whether Title II is the appropriate vehicle for one or both or neither, and whether Congressional action would be preferable,” he concluded. “But what I would like to see, through whatever approach is best, is light-touch rules that prevent any dominant corporation, whether ISP or Big Tech, from abusing its market position to engage either in censorship or in anticompetitive practices.”

FCC chair Jessica Rosenworcel's proposal to revive net neutrality rules produced mixed, mostly predictable, reactions from consumer and industry groups with the NCTA and the senior Republican appointee on the agency Brendan Carr opposing the idea while some Democratic party lawmakers and consumer groups applauded the move. 

The NAB declined to comment on the proposal. 

Rosenworcel made the proposal shortly after Anna Gomez was sworn in as an FCC commissioner, ending a lengthy deadlock. 

U.S. Senator Maria Cantwell (D-Wash.), Chair of the Senate Committee on Commerce, Science and Transportation said that the new Democratic majority would allow the FCC to take action on key consumer priorities, including restoring net neutrality protections gutted under the Trump Administration.

“With the swearing in of Anna Gomez, the FCC finally has the power to take action on the priorities important to the American people, from delivering on net neutrality and expanding affordable broadband access to strengthening local news,” Sen. Cantwell said. “I’m looking forward to working with the Commission to accomplish an agenda that puts consumers first.”

Cantwell also noted that a recent poll by the University of Maryland found that 72 percent of Americans support reinstating net neutrality and that she has been a leading advocate to protect and restore net neutrality rules. Last year, Sen. Cantwell co-sponsored the Net Neutrality and Broadband Justice Act to accurately classify broadband internet access as a telecommunications service under Title II of the Communications Act, giving the FCC the appropriate authority to reinstate net neutrality protections.

In contrast, Commissioner Brendan Carr, the senior Republican on the FCC issued a statement citing a study by former President Obama’s lawyers on internet regulation that found the effort to impose Title II regulation “would be struck down” by the courts and was a “serious mistake.” 

“The two respected lawyers—who represented the federal government before the Supreme Court during the Obama Administration—expressly lauded the goals of net neutrality,” Carr said in a statement. “Nonetheless, they concluded that Title II regulation of the Internet `would be struck down’ and `would be a serious mistake.’ I agree with President Obama’s lawyers.”

“First, the two senior Obama Administration alums are correct that, in their words, an FCC decision classifying broadband internet access service as Title II telecommunications service would ‘bring about an enormous and transformative expansion in [the agency’s] regulatory authority . . . over the national economy.’  Continuing, they rightly state that regulating the Internet as a Title II utility service `would vastly expand the Commission’s authority and would transform the way a federal agency regulates a vitally important element of our economy and the personal and social lives of hundreds of millions of Americans.’”

“Second, President Obama’s lawyers are correct in stating that any decision by the FCC to apply Title II, utility-style regulations to the Internet `would be struck down by the Supreme Court’ under the major questions doctrine, as West Virginia v. EPA makes clear. Indeed, as the two appellate lawyers succinctly put it last week, the legal question `is an easy one.’”

“As a former General Counsel of the FCC myself, I would encourage my Commission colleagues to heed the judicious guidance offered by these top lawyers from the Obama Administration and focus the FCC’s work on the numerous, important subjects that Congress has authorized the Commission to address—from rural broadband and public safety to spectrum and national security—rather than pursuing the Biden Administration’s unnecessary and unlawful plan for exerting government control over the Internet,”  he concluded. “Heading down the path to Title II would not only push vital FCC matters onto the back burner, it would knock many of them off the stove altogether.”

In a statement Republican-appointed Commissioner Nathan Simington noted that "it has now been nearly six years since we repealed the net neutrality rules, and as far as I know, no one has died yet, nor have any other of the solemnly predicted catastrophes come to pass."

Simington also joined Commissioner Brendan Carr in expressing some doubts about the use of Title II to rein in potential abuses by ISPs but focused much of his attention on big tech companies who would profit from the revival of net neutrality rules.

These big tech companies have funded “an obsession” with net neutrality that obscured the real issue, which is an attempt by big tech “to monopolize…the internet economy” and make sure “they and only they are allowed to reap the massive profits of the internet ecosystem," Simington said in a statement.

The misleading net neutrality debate around “free speech was just the public front for what was really a campaign of industrial lawfare,” by big tech and large streaming companies, he argued.

Michael Powell, president and of the CEO, NCTA – The Internet & Television Association that is backed by cable operators also slammed the plan. 

“The FCC has made clear its desire to launch new net neutrality rules, surfacing new ever-shifting rationales,” Powell said. “The original justification for accessing sweeping Title II authority has become obviously thin. ISPs continue to invest heavily, build ever-faster networks, and have kept those networks open. For two decades, there has been only one two-year period in which the FCC applied Title II to the internet, yet the internet has been open throughout because it makes business sense to offer it that way.”

“The proposed rules may complicate, if not deeply upset, our collective efforts to bring internet to rural and unserved communities,” he concluded. “These rules set out very heavy regulations that complicate the calculus of deploying networks in expensive, risky, and hard-to-serve markets. The FCC’s actions only add to that burden, and we fear net neutrality will lead to net fatality.”

Powell also predicted that “this will be a drawn out, messy proceeding with lots of wasted expense to get rules that might not survive the next election and are unlikely to pass constitutional muster when they reach the Supreme Court, which they inevitably will.”

Support for the idea came from consumer groups like Common Cause that have long backed the idea. 

Michael Copps, former FCC Commissioner and Common Cause special adviser backed the proposal by arguing that “to allow a handful of monopoly-aspiring gate-keepers to control access to the internet is a direct threat to our democracy. Anyone hoping to be a full participant in our society must have access to an open internet that serves the people’s needs. So much of our lives now takes place online that without an internet serving the public interest, we are short-changing ourselves and our country. Congratulations to FCC Chair Jessica Rosenworcel for her courageous leadership to bring net neutrality back.”

Ishan Mehta, Common Cause Media and Democracy Program director also supported the move. “The Internet has fundamentally changed how people are civically engaged and is critical to participating in society today,” Mehta said. “It is the primary communications platform, a virtual public square and has been a powerful organizing tool, allowing social justice movements to gain momentum and widespread support. We look forward to the reinstatement net neutrality protections, and the control of the Internet returning to the American people instead of Internet providers.”

"The repeal of Net Neutrality during the Trump Administration left access to broadband unregulated and consumers unprotected,” Meta added. “As a result we saw broadband providers throttle popular video streaming services, degrade video quality forcing customers to pay higher prices for improved quality, offer service plans that favor their own services over competitors, and make hollow, voluntary, and unenforceable promises not to disconnect their customers during the pandemic.”

WISPA, which has approximately 1000 members who provide fixed broadband connectivity, and include equipment suppliers, support services, and other industry partners and stakeholders criticized the idea.

“Though details remain to be seen, such a move to reimpose twentieth-century utility-style rules are not needed at this time,” said Louis Peraertz, vice president of policy for WISPA – Broadband Without Boundaries. “The marketplace has thrived in the very absence of such regulation. Low prices, capex output, and technological and service innovation abound. Further, more customers than ever receive broadband, with this number growing each day. Smaller ISPs in particular should not be saddled with burdensome regulations. WISPA has long stood against common carrier regulation of its members’ services. Though Title II would allow access to poles, conduits and rights-of-way for broadband providers – something not automatically granted to ISPs today – its cost, and what it augurs for the future of regulation, outweigh that benefit.  And if the FCC is concerned about the patchwork of state laws, that can be resolved through federal preemption that relaxes regulatory burdens, not increases them.”          

“Quite simply, Title II is for a bygone time, not for a time when companies are actively competing for broadband customers and the government is prepared to provide billions in funding for broadband deployment,” he continued. “That noted, we look forward to learning more and working with the Commission and other stakeholders on this important matter, which, ultimately, we believe demands legislation from Congress.”

Nearly six years after the FCC repealed net neutrality, the commission is preparing to revive the concept, which regulates the internet to ensure equal access to both enterprise and consumers. 

In a speech to the National Press Club today, FCC Chairwoman Jessica Rosenworcel said the commission would make details of its proposal public on Thursday and cited the impact of the Covid pandemic—and how the lack of universal broadband access made life more difficult for citizens who had no or poor access to high speed broadband—as among the reasons for bringing net neutrality back. 

“[The pandemic made] it crystal clear that broadband is no longer just ‘nice to have,’” the chairwoman said, ”it is essential infrastructure for modern life. No one without it has a fair shot at 21st century success. We need broadband to reach 100% of us and we need it to be fast, open and fair.”

The announcement of the proposal comes a day after Anna Gomez, the seventh and final commissioner was officially sworn in. Gomez, a Democrat, will most likely be the tie-breaker if and when the proposal comes up for a vote. 

In 2015, after more than a decade of debate over net neutrality, the FCC, under the Obama administration, adopted rules that would enforce openness and equal access to broadband under the net neutrality concept. Those rules however were repealed two years later under the chairmanship of Ajit Pai and upheld by an Appeals Court in 2018.

In her comments today, Rosenworcel said the repeal of net neutrality, “put the FCC on the wrong side of history, the wrong side of the law, and the wrong side of the American public.”

“It was not good then, and it makes even less sense now,” she said. “It determined that this infrastructure—which the pandemic proved is so essential for modern life—needs no oversight, and I think that's just wrong.”

Calling the proposal “a first step,” the chairwoman said that she will invite public comments about how restoring Net Neutrality rules “can help ensure Internet access is fast, open and fair.”

“We will need to develop an updated record to identify the best way to restore these policies and have a uniform National Open Internet standard,” she said.

The proposal will call for using Title II in FCC rules to reclassify the internet as an “essential service,” placing authority to place internet regulation under the commission’s purview. 

“Reclassification of broadband as a Title II service would make the FCC’s work more efficient and effective, and consumers more confident that their internet access is fast, open and fair,” she said.  

The chairwoman continued: “Title II is the part of the law that gives the FCC clear authority to serve as a watchdog over the communications marketplace and look out for the public interest. Title II took on special importance in the net neutrality debate, because the courts have ruled that the FCC has clear authority to enforce open internet policies if broadband internet is classified as a Title II service and providing a strong foundation for net neutrality rules is a good reason to support classifying broadband internet as a Title II service.”

Repealing net neutrality has not only hindered more equitable access to broadband, it has also led to numerous concerns over cybersecurity, emergency services, robocalls and privacy, Rosenworcel said. She also noted that when the rules were repealed, advocates for repeal said that states could replace national rules, but that is not a well thought out solution. 

“When you are dealing with the most essential infrastructure in the digital age, we benefit from having a national policy,” she said.

Rosenworcel took issue with those who think the repeal of net neutrality has had no identifiable impact on equitable broadband access.  

“They say nothing bad has happened, but again, states stepped into the void created by the FCC retreating from net neutrality,” she said. “I think it's time for Washington to step back in with a national policy to make sure internet access is fast, open and fair.” 

The previous fight over net neutrality led to threats both physical and verbal, including a bomb threat during an FCC hearing. Rosenworcal had a warning for both sides of the issue who might want to make their thoughts known outside of the usual comment process. 

“I recognize that those who go to these extremes are not listening to or reading these remarks,” she concluded. “But those of you who set the tone for the debate, make some noise, raise a ruckus, but keep it in the lines.”

WASHINGTON D.C.—Federal Communications Commission Chairwoman Jessica Rosenworcel has welcomed the introduction of the Net Neutrality and Broadband Justice Act in the Senate and House of Representatives in a statement that also asserts that the regulatory agency has “the authority it needs to adopt Net Neutrality rules.”

Given the difficulties Democrats have had in breaking the 2-2 deadlock in the FCC and the stalled nomination of Gigi Sohn, the new legislation would implement net neutrality rules. 

“The pandemic made clear [that] internet access is no longer a luxury, but a necessity—and that consumers don’t just need broadband, they need to be able to hold their providers to account,” Rosenworcel said in a statement. “After all, everyone should be able to go where they want and do what they want online without their broadband provider making choices for them. I support Net Neutrality because it fosters this openness and accountability. While I trust the FCC has the authority it needs to adopt Net Neutrality rules, legislation that helps ensure it is the law of the land is welcome.”

FCC Commissioner Geoffrey Starks also issued a statement supporting the introduction of net neutrality legislation in the U.S. Congress. 

“I have previously stated that the FCC’s 2015 Net Neutrality rules were the right approach,” Sparks wrote in a statement. “That approach is undergirded by a voluminous record and overwhelming public support, and it has been tested in court. The Net Neutrality and Broadband Justice Act would codify just that. COVID and the last few years have proven that broadband is essential for the 21st century. This legislation is an important step that will provide certainty to consumers and broadband providers, and allow everyone to move forward. It has my strong support.”  

SAN FRANCISCO—Soon after the 2020 election was called for Joe Biden, FCC Chairman Ajit Pai announced plans to step down from the FCC. The new administration will give Democrats a new opening to work on their priorities, which will likely include net-neutrality rules, universal broadband access and a perhaps a redirection of the Pai-led Modernization of Media Regulation initiatives, whose goal is to reduce what the commission has called unnecessary regulation.

Or, as Chris Lewis with Public Knowledge put it: a change in approach is drastically needed by the new FCC. 

“If the COVID pandemic taught us anything, it’s just how disastrous it has been to have an FCC that has removed its own authority over broadband,” said Lewis who is president and CEO of the public interest group. 

Democratic FCC Commissioner Jessica Rosenworcel is considered a candidate to replace Pai, as is Commissioner Geoffrey Starks, former Commissioner Mignon Clyburn, who stepped in as acting chairwoman during the Obama administration, and Gigi Sohn, former advisor to FCC Chair Tom Wheeler. 

One of the most important issues facing the industry now is redefining the video marketplace so that there is a clear recognition of the state of competition.  

“Broadcasters not only compete with themselves, but also big tech, big telecom, big cable, etc.,” Hoffman said. “It is preposterous to keep regs based on a quaint notion of ABC, CBS, NBC, Fox and new networks, when the market is so much more, with much bigger players.” 

But Rob McDowell, former FCC commissioner and now a partner with Cooley LLC, said broadcasters will have to accept the fact that a Biden-Harris FCC is not likely to give them regulatory relief as they face more competition from internet companies. 

“However, the Supreme Court will rule in the Prometheus appeal before the end of June and that could restore the FCC’s 2017 media ownership order, which relaxed rules such as regarding combinations of the two of top four stations in a market,” he said. “If that’s the case, look for some broadcasters to take advantage of such opportunities.”

When all the votes are counted, it is looking increasingly likely that the Democrats will have recaptured the White House by a donkey’s whisker. But it was unclear, though a long shot, if that blue ripple would flip the Senate. If so, that would give regulatory-minded congressional Democrats the ability to put an end to the legal wrangling over a neutral internet, impose tougher new privacy laws or pass their version of social media regulation. 

There were razor-thin races still being contested, with more potential twists possible at press time. But on the assumption that the late, urban-centric counties secured a victory for former Vice President Joe Biden that can’t be overturned by President Donald Trump’s lawyers or reversed through recounts—and if the FCC does shift to Democratic leadership—then cable, broadband and broadcast players face the potential return of a number of regulations, including network neutrality rules and an end to the FCC’s push to deregulate broadcast ownership.

The National Association of Broadcasters has hit its members up for more money, in part pointing to the possible need to make its deregulatory pitch to a re-regulatory D.C.

With Republicans holding onto the Senate, there would be no legislation reclassifying internet access as a Title I telecommunications service subject to mandatory access and potentially rate regulation. But a Democratic FCC would almost certainly do the reclassifying and restore rules against blocking, throttling and paid prioritization, which would be challenged in court again and continue the years-long careening from regulation to deregulation of internet access.

The FCC under a Democratic chair would likely conclude that broadband is not being deployed to all Americans in a reasonable and timely fashion, a 180-degree turn from the Republican-led FCC’s conclusion that progress toward deployment met that definition. 

If the FCC says deployment is not up to snuff, the law allows it to regulate to make it so. That effort could include rate regulation because, unlike Republicans, the Democrats argue that price is an impediment to reasonable broadband rollout. Democrats could also raise the speed threshold for the definition of broadband availability, which could reduce the number of households credited with broadband availability.

On the broadcast side, the FCC has been defending its broadcast ownership deregulation in the wake of a court remand from the 3rd U.S. Circuit Court of Appeals, which concluded the FCC had not sufficiently taken into account the impact of deregulation on diversity.

OWNERSHIP RULES LIKELY STAY

A Democratic FCC would almost certainly view the broadcast landscape differently. The Democrats have long argued that loosening local ownership rules simply helps mega-groups like Sinclair Broadcast Group get larger, to the detriment of localism and diversity.

But one veteran broadcast executive said that if a chairman Jessica Rosenworcel-led FCC, for example, does try to re-regulate, exhibit A against that move should be the recent report from Senate Commerce Committee Democrats that found online news has “decimated” broadcast TV news revenues in the age of digital, in part due to “unfair and abusive practices by tech platforms.” 

Look for a Democratic FCC majority, which would likely be led by a woman and include at least one minority member, to launch a serious inquiry into broadcast diversity — particularly considering the current reckoning over racial inequalities that are definitely evident in the makeup of broadcast ownership.

As the Rev. Jesse Jackson, NCTA–The Internet & Television Association president and CEO Michael Powell and many others have pointed out, minorities and women were not allowed in line when broadcast licenses were handed out, or in the room when big media deals were struck and the spoils divided.

The current FCC has shown no interest in launching a larger diversity inquiry in connection with the court’s directive to explicitly address the issue in any broadcast deregulation. Chairman Ajit Pai has dismissed the court remand as essentially an impediment to his diversity efforts, which included creating an incubator program that the court threw out and reconstituting the FCC’s diversity advisory committee.

According to the FCC’s latest biennial report on broadcast station ownership, released earlier this year, as of 2017 racial minorities collectively owned 26 commercial full-power TV's, or only 1.9% of the total, down from 36 (2.6%) in 2015.

SECTION 230 STILL LOOMS

One issue that won’t go away no matter which party wins the Senate or White House is the debate over what to do about Section 230, the provision in the Communications Decency Act that has allowed social media to flourish without the threat of civil suits over third-party content on their sites.

With an incoming Democratic administration, Pai would be unlikely to follow through with his plans on an order responding to the president’s call for social media regulation. Usually, lame-duck chairmen stand down from controversial items at the behest of congressional leadership from the other party. Pai does not have to comply, but a new FCC could simply reverse an 11th-hour Section 230 order.

The concerns about the size and power of Big Tech run across party lines, though. There will likely be some changes to Section 230, said a former top FCC official speaking not for attribution. But there probably won’t be anything going out the door on a matter as controversial as that before a change in administrations. 

Biden has been a critic of Section 230’s broad immunity, as have congressional Democrats. But while Republicans were using the issue as a cudgel on Silicon Valley giants they say were systematically censoring conservative speech, Democrats say that charge is bogus and was, at least in part, a way to try and pressure Twitter and Facebook not to flag the president’s tweets before the election. Democrats are focused on curtailing hate speech and election meddling via changes to Section 230.

“I definitely see something happening on Section 230, though I think it is constitutionally dicey to find some way to raise and lower the liability issue based on curation,” Robert McDowell, a Republican FCC commissioner during the Bush and Obama administrations and now co-chair of Cooley’s global communications practice group, said. “I am not sure how that survives constitutional muster when it comes to political speech.”

PRIVACY LAWS STILL HARD

Had Democrats won the Senate, privacy legislation might have finally seen the light of day after lots of bipartisan talk and no action. Now, presumably, not so much, though McDowell suggests that, while politically popular, it would still have been hard even in an all-Democratic town, where it becomes essentially an intramural fight. He pointed to the large California delegation that would want something at least as strong as the state’s privacy law, the California Consumer Privacy Act. “It is difficult even with the most apolitical policymakers,” McDowell said. “But there is the popular sentiment that something amiss in the tech world,” McDowell said. 

Industry players were not rooting for a re-regulatory pendulum swing in this election. But even though he was an avowed deregulator-in-chief in some ways, Trump’s inconsistency made it hard to predict where he would come down on issues, and he drew flak from various communications quarters.

NCTA recently took strong issue with Trump’s executive order on diversity training, a directive that no government contractor would get business with his administration if their diversity training included efforts to address systemic racism. The Biden administration would almost certainly reverse that order ASAP. The president’s targeting of cable news networks for scorn, as well as his threats to break up Comcast NBCUniversal and try to block the AT&T-Time Warner merger, have put him at odds with an industry that would have otherwise been in his deregulatory corner.

The NAB pushed back hard on Trump’s attacks on the news media, while the Consumer Technology Association was highly critical of his stands on immigration and tariffs, which respectively threatened a high tech workforce and raised the cost of tech products.

If Biden is the president, look for Trump tariffs to be reviewed/rescinded and for a better working/sparring relationship with the mainstream media.

WASHINGTON—U.S. Senators Ed Markey (D-Mass.), Richard Blumenthal (D-Conn.) and Ron Wyden (D-Ore.) have all signed a letter that criticizes AT&T for a practice that they allege blatantly favors HBO Max over other streaming services and would have constituted a violation of previous net neutrality rules.

According to a report by The Verge, AT&T is excluding the HBO Max streaming service, which AT&T owns, from traditional data caps and the soft data caps on unlimited plans. Other streaming services, like Netflix and Disney+, are still subject to these data caps.

AT&T says that HBO Max is benefiting from the company’s “sponsored data” system, which enables content companies to pay AT&T for the right to be exempt from data caps. However, the senators note that since HBO Max is owned by AT&T, the company is “essentially paying itself.”

“Although your company has repeatedly stated publicly that it supports legally binding net neutrality rules, this policy appears to run contrary to the essential principle that in a free and open internet, service providers may not favor content in which they have a financial interest over competitor’s content,” the letter reads.

The senators believe that this practice from AT&T would be considered “zero-rating,” which allows end users to access content without the required data usage counting toward the caps on the users’ plans. Prior to what the trio says was efforts to “eviscerate critical rules” by the current FCC, such practices were deemed harmful conduct and discrimination of competitors in favor of their own affiliates.

“Zero-rating carries a risk of manipulating the content marketplace in ways that ultimately harm internet users,” the letter argues.

“The Trump FCC may have gutted critical net neutrality protections, but AT&T nonetheless has a responsibility to avoid any policies or practices that harm consumers and stifle competition,” the letter reads.

The senators ask that AT&T provide an explanation for these actions by June 25.

The full letter is available online. 

WASHINGTON—The FCC today won a court ruling that upholds its 2018 order nullifying net neutrality rules, unanimously agreeing with the commission’s classification of broadband internet access as a Title I “information service,” as part of its justification for dropping the rules.

The U.S. Court of Appeals in D.C. did make two exceptions in its decision, however. It said the commission did not prove that it had the legal authority to prevent states from imposing any rules more stringent than the FCC’s 2018 order. It also remanded the decision back to the commission, noting that the FCC failed to examine the implications of its order for public safety as well as what reclassification would mean for regulation of pole attachments or how it would affect the commission’s “Lifeline Program,” which provides communications discounts to low income consumers.

The court used the “Chevron principle” in agreeing with the commission’s classification of broadband as an “information service.” The Chevron principle allows federal agencies to clarify a Congressional statute if it is considered ”reasonable.”

“Applying these principles here, we hold that classifying broadband internet access as an ‘information service’ based on the functionalities of DNS and caching is ‘a reasonable policy choice for the [Commission] to make,’” the court said.

The court also disagreed with opponents of the commission’s decision, who said the FCC’s use of the term “public switched network” must be understood as if Congress had used the phrase ‘public switched telephone network.’” The court said that the term “public switched network” can be used to describe a telecommunications system that uses both telephone numbers and IP addresses.

FCC Chairman Ajit Pai hailed the decision.

“Today’s decision is a victory for consumers, broadband deployment and the free and open internet. The court affirmed the FCC’s decision to repeal 1930s utility-style regulation of the internet imposed by the prior Administration,” he said in a statement. “The court also upheld our robust transparency rule so that consumers can be fully informed about their online options. Since we adopted the Restoring Internet Freedom Order, consumers have seen 40% faster speeds and millions more Americans have gained access to the internet. A free and open internet is what we have today and what we’ll continue to have moving forward. We look forward to addressing on remand the narrow issues that the court identified.”

FCC Commissioner Jessica Rosenworcel, who opposed the FCC’s original order, said in a tweet that the fight for net neutrality is “not over.”

WASHINGTON--Federal Communications Commission Chairman Ajit Pai threw some serious shade at former FCC Chief Information Officer David Bray in a Monday statement about the Office of Inspector General’s investigation into the May 2017 “incident involving the FCC’s Electronic Comment Filing System.”

Although he did not refer to Bray by name — only as “the FCC’s former Chief Information Officer (CIO), who was hired by the prior Administration and is no longer with the Commission,” “the former CIO” or “then-CIO” — in the statement, Pai made clear that he laid the blame for the rumors and conspiracy theories at his feet.

Pai said he is “deeply disappointed” that Bray “provided inaccurate information about this incident to me, my office, Congress, and the American people,” referring to a statement released by Bray’s office that said the disruption to the comment system was a result of “multiple distributed denial-of-service attacks (i.e. DDoS). These were deliberate attempts by external actors to bombard the FCC’s comment system with a high amount of traffic to our commercial cloud host.”

Although he called Bray’s actions “completely unacceptable,” Pai said he is “pleased that this report debunks the conspiracy theory that my office or I had any knowledge that the information provided by the former CIO was inaccurate.”

In addition to castigating Bray for telling him “we’re 99.9% confident this was external folks deliberately trying to tie-up the server to prevent others from commenting and/or create a spectacle,” Pai said it’s “abundantly clear that ECFS needs to be updated.” And he said the good news is that Congress last week authorized funding to revamp the FCC comment system.

Pai also addressed cultural issues that he said contributed to the misleading statements. “I’m also disappointed that some working under the former CIO apparently either disagreed with the information that he was presenting or had questions about it, yet didn’t feel comfortable communicating their concerns to me or my office.”

Because of this report, Pai said his office plans to “make it clear” that FCC IT employees “are encouraged to speak up if they believe that inaccurate information is being provided to the commission’s leadership.”

Bray now works as executive director of the People-Centered Internet Coalition.

A representative shared a prepared statement: “Dr. Bray has not been contacted by the FCC IG and has not seen their reported findings. There has not been any outreach to ask what he had seen, observed, or concluded during the events more than a year ago in May 2017.” After emphasizing that Bray is no longer with the commission, the statement added that “Swift response ensured the commenting system was up more than 99.4% of the time for the total commenting period” (presumably referring to the Title II debate). 

We all thought any more discussion about net neutrality was done and over with back in 2015 when the Federal Communications Commission, FCC, in the U.S. adopted Net Neutrality rules that keep the internet free and open. It was a fierce battle leading up to this decision and now the FCC is reversing its decision and removing the net neutrality rules. So what does this really mean?

My wife is an avid Facebook user—strictly for her profession—and she started asking me about net neutrality. As you may know, I live in Canada, so I was curious to know why she even knew about net neutrality given her vocation is teaching specialized arts and craft techniques, which has little to do with our tech-y media and entertainment world. Many of her Facebook “friends” were up in arms and super concerned about the changes in net neutrality and how it would affect their daily lives including their Facebook activities. Digging deeper it was pretty clear people were only picking up a single thread about net neutrality. This is unfortunately really common now; social media is increasingly an echo chamber for like-thinking people, without even a hint of the balanced view that professional journalists strive to report.

Net neutrality is all about ISPs (internet service providers) not being able to block, or for that matter even slow down, specific internet traffic to their customers. Without net neutrality, competitive services could be slowed down or even blocked by ISPs. For instance, an ISP that is owned or associated with a media company could block or slow up competing television services that are using OTT for distribution. For that matter, the reverse could happen where media providers that rely on OTT could indeed pay the ISPs to give their services higher speeds, thus slowing down their potential competition.

Getting back to my wife’s Facebook “friends” hyped-up concerns, opinions aired over the Internet could be blocked if the ISP has opposing views, stifling free speech online. Wow—here we are back to freedom of the press! Many smaller lobby groups are afraid they will lose their voices.

So why would the FCC make a 180 degree turn? They call this “Restoring Internet Freedom” moving back to encourage rapid Internet growth, openness, and freedom. As Jim Burger, who is an attorney in Washington at Thompson and Coburn explains it, the current administration believes “less regulation is good.” I have spoken with several colleagues including those whose companies have a foot in the Internet and the media business who believe this 180-degree turn is good—however they declined to go on record and do an interview for IABM TV.

As you can see, there are very strong opposing views on this topic. Thinking about this on a broader level, Net Neutrality has been considered very important for small business owners, startups and entrepreneurs to compete against the big guys who could afford to bias the Internet service providers’ through-puts. Further, overseas companies wanting to provide services within the US. .could be blocked. Either way, this new “freedom” would effectively actually reduce freedom of choice for buyers. After all, who can do any business these days without having an internet presence? This could happen in other countries too, protecting their own services; many countries outside the US. .are watching this closely as they decide on their own communication regulatory framework. 

Stan Moote is the CTO for the International Association of Broadcast Manufacturers.

A shocking headline occurred this week: AT&T called on Congress to pass net neutrality rules. Wow. This is the first time an MVPD or telco (AT&T is both) has switched sides in the argument and the occurrence reminded me of a recent conversation. At the end of a lunch with a friend, a senior managing director of a big consulting firm, he asked offhandedly, “What’s your take on this net neutrality thing?” A smile crossed my face. This was an opening I’d been looking for because I firmly believe the whole subject is entirely misunderstood. 

The people who are pro net neutrality say, “a bit is a bit,” and, “my ISP should not throttle or change how bits are received based upon who is sending it.” They sometimes see the end of net neutrality as “the end of the internet as we know it.”

The people who are against net neutrality say, “it’s unnecessary government meddling,” and, “leave this to the marketplace.”

PEER TO PEER

What’s missing from both these arguments is an understanding of the subtleties of peering and how networks are connected. When two networks are connected voluntarily, it’s typically because there’s mutual benefit to both parties. If party A and party B exchange an equal amount of information, there’s no need for the parties to charge each other. This is sometimes called “settlement-free peering.”

Things change when traffic is very one-sided. If party A is delivering significantly more traffic via the network than party B, the “traffic ratio” is not balanced. Party B has to create and maintain network infrastructure to support Party A’s traffic without receiving a benefit in return.

The classic example is Netflix, who want their bandwidth-heavy video content to be delivered by ISPs such as Charter. The traffic flow of movies to end customers is immense, but the opposing flow from customers back to Netflix consists of only very light commands back through the network. Charter actually has a disincentive to carry Netflix content that might compete with Charter’s own video products. Paid-peering has been an important part of the solution. If it were not, the ISPs would be likely to charge different tiers of service for Netflix users, higher prices or meter bandwidth, none of which would be appealing to American consumers. 

Those in favor of markets, instead of regulations, believe that in a free and fair market, prices settle and consumers can select the services they want. This would be their preferred approach to solving the net neutrality problem. The issue with the market argument is that many Americans have no choice of ISP; many are limited to just one high-speed provider, or at most two or three. That’s not even close to being a fair market.

BOTH ARE WRONG

In other words, both the people who support net-neutrality and those who are opposed are wrong. To find where I come out on this, you just need to read my post from a year ago. The best approach would be a robust market with options to provide true consumer choice, but that does not appear to be on the radar screen. Limited regulation is the next best solution.

That’s the context that helps explain AT&T’s change of position. AT&T has at least six reasons to support regulation: 

1) An even playing field helps simplify their operation and prevent neutrality from becoming a competitive issue;

2) In the absence of federal rules, there are likely to be a myriad of state rules; a nightmare for a nationwide-ISP;

3) Net neutrality is essential to their DirecTV NOW OTT business;

4) By supporting legislation, they would be in a better position to ensure paid peering arrangements will be legal under the law;

5) If there are federal rules for the ISPs to play by, there’s less of a chance that they will be deemed monopolies and broken up, and don’t forget…

6) AT&T is still trying to purchase Time Warner and wants to be seen as being cooperative and content neutral.

If you are reading this article, it’s likely you work for a broadcaster or cable programmer and your company’s position on net neutrality is likely to be nuanced. Supporting the latest FCC ruling—no net neutrality—endorses the MVPDs who are enablers of the historic business models. It is a vote to maintain the MVPDs as the gate-keepers of the status quo for as long as possible. Supporting net neutrality legislation, as AT&T is doing, is an attempt to focus on future revenue and business models, but comes with the risk of enabling competitors to that future.

Regardless of where you sit, this one is worth watching carefully.

Larry Thaler is the President of Positive Flux, a consulting firm that specializes in helping media companies take advantage of the rapid changes occurring in the industry. He can be reached via TV Technology.

LAS VEGAS—Five federal policymakers offered their familiar visions of core regulatory issues, including spectrum policy and net neutrality, during CES sessions. With the FCC Chairman absent because of death threats he has recently received, and Democratic Commissioner opting to skip the program, the sessions were largely status reports on activities at the FCC, NTIA and FTC. The on-stage discussion did not address the Commission’s split decision in November on ATSC 3.0 rules.

FCC Commissioners Brendan Carr, Mignon Clyburn and Michel O'Rielly

David Redl, who heads the National Telecommunications and Information Administration, opened the session by reading very quickly through prepared remarks, touching on spectrum policy, cyber-security, international governance and the development of telecom infrastructure, including sharing of bandwidth assigned to federal agencies. He promised that spectrum policy will be a major focus of NTIA this year, and the agency will work with industry to develop procedures to make better use of the airwaves.

“We must do everything we can this year and beyond to accelerate America’s 5G leadership,” he said. “With 5G set to drive demand for more access to spectrum, we’ve been looking at bands across NTIA’s notorious spectrum chart.” Citing the 37 GHz band, he said NTIA is “optimistic” that “if we can get this right, it will serve as a model on how to handle sharing in other bands.”

Redl also emphasized NTIA���s prioritization of cybersecurity. 

After Redl’s speech, Julie Kearney, CTA’s VP-regulatory affairs, sat down for a chat with FCC Commissioners Mignon Clyburn, Brendan Carr and Michael O’Rielly.

O’Rielly said he expects a “busy and exciting year” in which the Commission will eliminate rules “that no longer make any sense,” citing Pai’s intent to delete aging regulations.

Commissioner Brendan Carr predicted, “We’ll unleash more innovation and greater investment.” He also said he expects that the policies will lead to broadband expansion.

Clyburn called the net neutrality decision and its aftermath as a “teachable moment.”

Kearney sought to extract opinion from the Commissioners about the need for or likelihood of an update of the Communications Act that steers their decision-making. Analysts acknowledge that Congressional action on such legislation is not currently on the drawing board.

O’Rielly said that a new law would mean that FCC wouldn’t have to “parse out meaning” from the 1934 communications legislation and subsequent laws.

Clyburn said she is hopeful that Congress will move in a way to recognize what the FCC, although she acknowledged that, “We’re not going to get a blueprint of everything that comes before us.”

At an earlier session, Federal Trade Commission Chairman Maureen Ohlhausen assured the audience that the FTC is ready to play a larger role in enforcing Open Internet regulations that are part of the FCC’s repeal of Title II classification.

“From the advent of the internet until 2015, the FTC played an active role,” she said. “Now that the Open Internet order was put out, eventually the authority is going to come back to the FTC.” 

CTA President Gary Shapiro, who interviewed Ohlhausen on stage, said that, “No other session in CES history has gotten as much pre-show attention” as the expected Pai participation.

Shapiro characterized CTA’s stance on neutrality as ‘very complex in terms of nuance.” He said that he believes Republicans and Democrats agree on “the most fundamental basic principle” that consumers should be able to get whatever they want.

WASHINGTON—In another 3-2 vote along party lines, the FCC voted on Dec. 14 to eliminate most network neutrality rules, reclassify ISPs, wired and wireless, as non-common carriers and deed most of the internet policing functions to the Federal Trade Commission or Justice Department. This vote removes rules against blocking, throttling and paid prioritization.

Read the full story on TVT’s sister publication B&C.

WASHINGTON—FCC Chairman Ajit Pai has officially issued the roll back of Title II classification of internet access providers. This would no longer classify them as common carriers subject to mandatory access requirements. The item has been circulated to the FCC commissioners ahead of a planned vote on Dec. 14, where it is expected to pass despite Democratic opposition.

The full story is available on TVT’s sister publication B&C.