Daily Digest 10/1/2019 (Net Neutrality Decision and Reaction)

Benton Institute for Broadband & Society

Tuesday, October 1, 2019

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A special edition of Headlines devoted to the U.S. Court of Appeals for the District of Columbia Circuit Net Neutrality Decision

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US Court of Appeals Issues Net Neutrality Decision

Reaction from FCC Commissioners

Reaction from Congress

Table of Contents

The Decision

US Court of Appeals Issues Net Neutrality Decision  |  Read below  |  Public Notice  |  United States Court of Appeals for the District of Columbia Circuit

The Reaction

FCC Commissioners Reaction to Net Neutrality Decision  |  Read below  |  FCC Chairman Ajit Pai, FCC Commissioner Jessica Rosenworcel, FCC Commissioner Michael O'Rielly, FCC Commissioner Brendan Carr, FCC Commissioner Geoffrey Starks  |  Press Release  |  Federal Communications Commission
Members of Congress Respond to Net Neutrality Decision  |  Read below  |  Kevin Taglang  |  Benton Institute for Broadband & Society
More Reaction to Net Neutrality Decision  |  Read below  |  Kevin Taglang, Robbie McBeath  |  Benton Institute for Broadband & Society

Net Neutrality and the 2020 Election

A guide to the 2020 Democrats’ views on net neutrality  |  Daily Dot
Sen Warren pledges to restore net neutrality if elected  |  Daily Dot
Sen Bernie Sanders pledges to nominate FCC commissioners who will reinstate net neutrality  |  Daily Dot
Restoring net neutrality is part of Pete Buttigieg’s rural economy plan  |  Daily Dot
Sen Kamala Harris says she will restore net neutrality if elected  |  Daily Dot
Sen Amy Klobuchar wants to wield the White House to save net neutrality  |  Daily Dot
Montana Governor Steve Bullock Signed Order to Force Net Neutrality in Jan 2018  |  New York Times
Today's Top Stories

The Decision

US Court of Appeals Issues Net Neutrality Decision

We uphold the 2018 Order, with two exceptions. First, the Court concludes that the Federal Communications Commission has not shown legal authority to issue its Preemption Directive, which would have barred states from imposing any rule or requirement that the FCC “repealed or decided to refrain from imposing” in the Order or that is “more stringent” than the Order. 2018 Order ¶ 195. The Court accordingly vacates that portion of the Order. Second, we remand the Order to the agency on three discrete issues: (1) The Order failed to examine the implications of its decisions for public safety; (2) the Order does not sufficiently explain what reclassification will mean for regulation of pole attachments; and (3) the agency did not adequately address Petitioners’ concerns about the effects of broadband reclassification on the Lifeline Program. Despite the Commission’s failure to adequately consider the 2018 Order’s impact on public safety, pole-attachment regulation, and the Lifeline Program and despite our vacatur of the Preemption Directive, we decline to vacate the 2018 Order in its entirety...

Coverage of decision:

The Reaction

FCC Commissioners Reaction to Net Neutrality Decision

FCC Chairman Ajit Pai, FCC Commissioner Jessica Rosenworcel, FCC Commissioner Michael O'Rielly, FCC Commissioner Brendan Carr, FCC Commissioner Geoffrey Starks  |  Press Release  |  Federal Communications Commission

FCC Chairman Ajit Pai: "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. 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: “When the FCC rolled back net neutrality it was on the wrong side of the American people and the wrong side of history. Today’s court decision shows that the agency also got it wrong on the law. The agency made a mess when it gave broadband providers the power to block websites, throttle services, and censor online content. Today’s court decision vacates the FCC’s unlawful effort to block states and localities from protecting an open internet for their citizens. From small towns to big cities, from state houses to governors’ executive actions, states and localities have been stepping in because the FCC shirked its duties. In addition, the court took the agency to task for disregarding its duty to consider how its decision threatens public safety, Lifeline service, and broadband infrastructure. As the FCC revisits its policies in light of the court’s directives, I hope it has the courage to run an open and fair process. The momentum around the country is proof the American people are not done fighting for an open internet. I’m proud to stand with them in that fight.”

FCC Commissioner Michael O'Rielly: “While I am still in the process of digesting the decision, the main tenets of the Commission’s action are thankfully affirmed. It is heartening to see a court get most of the decision correct. The classification issue was clearly within our authority and grounded in sound policy as it avoids the hubristic posture of a central-planning, micro-managing government, which harms innovation and reduces the benefits accruing to American consumers that are made possible by a light-touch approach. At the same time, vacating the preemption provisions seems to misread precedent and ignores the technology’s structure, which cannot be segmented into intrastate portions. Inevitably, this will lead to Commission case-by-case preemption efforts and more litigation.”

“Today’s decision is a big win for a free and open Internet and for U.S. leadership in 5G. The Internet has flourished under the light touch approach to regulation that the FCC restored in 2017. Since then, Internet speeds are up, prices are down, and the U.S. leapfrogged our global competitors to secure the largest 5G build in the world. By affirming the FCC’s authority to take this modern approach to Internet regulation, today’s court decision will enable us to build on this success for the benefit of all Americans," said FCC Commissioner Brendan Carr.

“At its best, the internet is a democratizing, empowering force.  A truly free and open internet enables everyday people, regardless of their means or status, to elevate their ideas, access boundless information, and drive our economy to innovate without undue external influence. This must be protected to the last inch," said FCC Commissioner Geoffrey Starks. “Above all else, today’s decision breathes new life into the fight for an open internet.  It confirms that states can continue to step into the void left by this FCC.  To that end, it is a validation of those states that have already sought to protect consumers, and a challenge to those that haven’t yet acted to think hard about how to protect their citizens.  More pointedly, the decision affirms that the FCC ignored key aspects of its mission with regard to public safety and broadband deployment.  And the decision admonishes this Commission for its failure to consider the impact of its action in this context on Lifeline, a critical program that makes broadband more affordable for low-income consumers. The power remains with the people.  Be loud.  I’m sure that people across the country who have been invested in this process will continue to demand action from state and federal legislators and will weigh in with the Commission when we consider the Court’s guidance in the near future.  I hear you, and know that I will be raising my voice with you.” 

Members of Congress Respond to Net Neutrality Decision

House Commerce Committee Republican Leader Greg Walden (R-OR) said, "Today’s opinion makes it clearer than ever that Congress needs to come together and craft bipartisan legislation to provide consumers certainty and preserve one national standard for the open, free, and dynamic internet of the future. While we are pleased that the D.C. Circuit upheld the successful light-touch regulations and transparency rule, the continued uncertainty from legal pinball will only worsen consumers’ experiences on the internet. We are disappointed with the Court further confusing the role of the states in setting the rules of the road. A patchwork of state regulations will hamper innovation, creating confusion and compliance nightmares. Republicans remain committed to working on a serious, bipartisan approach to creating a national standard; a permanent, statutory framework. We stand ready, with a bipartisan menu of options; this is a logical starting point to that conversation. We hope Speaker Pelosi will heed the calls of 47 Members of her caucus who said it best: ‘we believe a bipartisan working group will allow us to work together to enact strong, enforceable protections that will ensure a truly free and open internet for all.'”

“Today, the U.S. Court of Appeals for the D.C Circuit issued an opinion that leaves the future of the free and open internet in question,” said Senator Markey, who introduced the first net neutrality bill in the House of Representatives in 2005. “When I attended the net neutrality court hearing earlier this year, I heard the FCC and broadband industry use tortured logic to defend the repeal of net neutrality and undermine strong rules for an open internet. Sadly, today’s court opinion doesn’t reflect the clear reality that Americans rely on the internet the way they rely on electricity or telephone service," said Sen. Ed Markey (D-MA). “But across America, support for a free and open internet is through the roof. Polling shows that American families in both political parties want strong net neutrality rules on the books. Today’s ruling allows states to continue the fight for net neutrality, and I believe a movement of activists and organizers will erupt across the country to push states to enact strong net neutrality rules. The need to stop the big internet service providers from blocking, throttling, and paid prioritization is as dire as ever. It is more imperative than ever that Congress enacts my ‘Save the Internet Act’. This legislation does exactly what the American people want – it restores the rules that ensure families aren’t subject to higher prices, slower internet speeds, and even blocked websites because the big broadband providers want to pump up their profits. I call on Leader McConnell to stop the obstruction and bring to a vote on this legislation that passed House of Representatives in April. The future of the internet as we know it depends on it.” 

More Reaction to Net Neutrality Decision

Kevin Taglang, Robbie McBeath  |  Benton Institute for Broadband & Society

Gigi Sohn, Distinguished Fellow at the Georgetown Law Institute for Technology Law & Policy and a Benton Institute for Broadband & Society Senior Fellow & Public Advocate:  "The DC Circuit Court has spoken very clearly --  the states are now free to do what the FCC will not –- assert authority over the broadband market and protect an open Internet. Broadband providers will inevitably complain about having to comply with a so-called 'patchwork' of different state laws, but that is of their own making. Congress has a golden opportunity to set a federal standard and it’s called the Save the Internet Act, which the House passed in April. Upon its passage, the popular 2015 net neutrality rules will be reinstated, and just as importantly, so will the FCC’s legal authority to protect consumers and competition in the broadband market. The industry should join the American people and urge the Senate to pass the Act and for the President to sign it without delay."

Andrew Schwartzman, Benton Senior Counselor who represented the Benton Institute for Broadband & Society: “It is clear that the fight over net neutrality is just beginning. The FCC can try to fix its mistakes, but the court made it clear that the commission cannot block states from passing their own net neutrality statutes and issuing executive orders.”

Amy Keating, the chief legal officer for Mozilla: "Our fight to preserve net neutrality as a fundamental digital right is far from over. We are encouraged to see the Court free states to enact net neutrality rules that protect consumers. We are considering our next steps in the litigation around the FCC’s 2018 Order, and are grateful to be a part of a broad community pressing for net neutrality protections in courts, states and in Congress."

Free Press Vice President of Policy and General Counsel Matt Wood: “Unfortunately, the judges gave a pass to the flimsy legal arguments and phony claims used to tear down these important rules in late 2017 — not because Ajit Pai and the agency processes he abused led to the right decision, but because courts give agencies a lot of deference when interpreting the law. The court’s unusual opinion gave credence to the bad technical arguments and economic lies Pai used to force his order through, even though the judges concurring in that close legal reading said loud and clear that the 15-year-old Supreme Court case dictating this result no longer reflects the realities of modern broadband service. Yet the court’s decision underscores the pressing need for the Senate to pass the Save the Internet Act that the House adopted in April. It opens the door for a future FCC to go back to the right rules, and for states to fill the vacuum with state-based Net Neutrality laws. And the court rejected the FCC’s arguments on several key broadband policies, sending them back to the agency.”

John Bergmayer, Legal Director at Public Knowledge: “We are gratified that the Court agreed with Public Knowledge and other petitioners on the matter of preemption. As we argued, once the Commission decided not to regulate broadband, it lost the ability to preempt states from doing so. The Commission’s choice to give up oversight of broadband means that states now have the clear authority to step in to protect consumers and promote competition where the FCC is unwilling to do so. The Court’s decision leaves states with a clear path forward to enact state net neutrality laws to protect internet users and provide certainty for participants in the digital economy. States should move expeditiously to protect consumers where the FCC has refused to do so. In deciding whether the FCC’s Order was permissible regarding the classification of broadband, the Court applied a highly deferential standard and found that the Commission narrowly satisfied its burden — noting at one point that the Commission ‘barely survives arbitrary and capricious review,’ and that the Commission ‘failed to provide any meaningful analysis’ regarding how existing law will protect consumers without the agency’s net neutrality protections. However, for the moment, broadband remains classified as an information service — though the Commission must reexamine the effects its choice will have on public safety, universal service, and access to utility poles, which is important for competition. This provides a further opportunity for the public to show how the Commission’s approach is incompatible with these important policies. It is disappointing that the court’s decision leaves the American people without national rules protecting them against broadband providers blocking, throttling, or discriminating against certain types of internet traffic. While states should move quickly to enact net neutrality consumer protections, Congress should also respond to the overwhelming demand for strong net neutrality protections by passing the Save the Internet Act to provide certainty to all internet users across the country.”

Sarah Morris, director of New America’s Open Technology Institute: "The FCC passed a sloppy, deeply harmful net neutrality repeal Order, and the Court goes to great lengths to highlight the Order’s mistakes. Importantly, the Court calls out the FCC for failing to consider the impact on public safety, one of the FCC’s core responsibilities. The FCC will have to try again to prove that it is taking this responsibility seriously. In light of this partial remand to the FCC, there is still more work to be done to ensure that internet users remain protected. The Court gives the green light to states to continue to play a role in protecting net neutrality by striking down the FCC’s broad assertion of preemption. Given the FCC’s repeal and abdication of its broadband oversight role, states should work toward passing their own strong net neutrality laws. And the ball is once again back in Congress's court, where bipartisan majorities in both chambers have already voted to reinstate the 2015 rules. The Senate should immediately pass the Save the Internet Act, which the House approved earlier this year, to bring back the 2015 Open Internet Order.”

Jonathan Schwantes, senior policy counsel for Consumer Reports, said, “The court let down the millions of consumers who called on the FCC to keep its net neutrality rules. The silver lining is that the court rejected the FCC’s attempt to stop states from passing their own laws, although we expect the federal government to keep fighting those efforts. The primary path forward for net neutrality — for now — moves to the states. The court’s decision means state legislators can advance laws that give consumers what the FCC took away — strong net neutrality rules that put consumers first. California’s net neutrality law, which remains tied up in the courts, will live to see another day. We worked hard to pass the California law, and we will press other states to do the same.”

Evan Greer, deputy director of Fight for the Future: “Internet users: get ready to fight. Telecom monopolies like AT&T, Comcast, and Verizon are hellbent on destroying net neutrality so they can squeeze all of us for more money and control what we see and do online. We’re still analyzing today’s court decision, but what we know for sure is that Big Cable’s lobbyists will use this as an excuse to swarm Washington and attempt to ram through bad legislation that would permanently gut open Internet protections and strike down good state laws like California’s. We can’t let that happen."  

“Today, the DC Circuit approved the FCC’s 2017 repeal of its 2015 net neutrality rules, reversing the court’s previous decision to uphold those rules.  With this decision, the Court demonstrates it just doesn’t “get it” when it comes to an open internet.  Without net neutrality rules, Comcast, Verizon, and AT&T are in the saddle and consumers are being ridden to higher prices, internet throttling, blocking, and slow-lane traffic," said Michael Copps, Common Cause Special Adviser and Former FCC Commissioner. "However, the court’s decision also reverses, the FCC’s decision to preempt state net neutrality laws, making clear that states are free to pass such legislation in order to protect their residents.  The states thus retain their ability to fill the void caused by the repeal of federal net neutrality rules. California has already passed the gold standard for state net neutrality legislation, and other states should follow that model."

Information Technology and Innovation Foundation (ITIF) Director of Broadband and Spectrum Policy Doug Brake: "The D.C. Circuit Court is right to uphold the Restoring Internet Freedom order. Repealing the Title II rules was an important step toward a modern framework that isn’t predicated on broadband as a common carrier utility service. However, the FCC’s order wasn’t perfect. What’s more, with the court’s decision, states can move forward with their own regulations, creating more confusion and potential conflict. Broadband networks—the fundamental communications platform of our day—deserve uniform, nation-wide, expert agency oversight at the FCC. Also, today’s opinion probably isn’t the last word on net neutrality. Congress should write compromise rules under new broadband authority to end the back-and-forth at the FCC and the courts."

“Today’s decision that the FCC can’t stop states from protecting their citizens online is a historic win for California and all Internet users," said Stanford's Barbara van Schewick. "While the FCC's 2017 Order explicitly banned states from adopting their own net neutrality laws, the court ruled that preemption is invalid."

Americans for Prosperity Policy Manager David Barnes: “We’re pleased to see the federal appeals court recognized the merit of the FCC’s decision to remove unnecessary internet regulations. Thanks to Chairman Pai’s Restoring Internet Freedom Order, broadband internet service is once again properly classified under a light touch regulatory model as an information service. Fewer regulations have led to better average connection speeds for Americans and opened the door to greater broadband investment. Despite the fear mongering of some, more than a year after heavy-handed Title II regulations were removed the internet remains as free and open to the American public as ever. Congress should seize this opportunity to pass legislation that permanently categorizes broadband internet service as a Title I service with a light regulatory touch.”

Internet Association (IA) President & CEO Michael Beckerman: “The internet industry shares the view of an overwhelming majority of Americans that net neutrality protections are critical to the future of a free and open internet. IA and our member companies will continue to fight for nationwide, strong, enforceable net neutrality protections that ban blocking, throttling, and paid prioritization through Congress and at the FCC. ”

Entertainment Software Association (ESA) President & CEO Stanley Pierre-Louis: “This ruling fails to ensure a fair and open internet for video game players and all internet users. While ESA is disappointed by the Court’s decision, today’s ruling stops short of endorsing the Commission’s order and opens the door to state action to protect net neutrality. We continue to support uniform and enforceable open internet protections that encourage investment and innovation, including by amending the 1996 Telecom Act to fit the 21st Century.”

"Today’s DC Circuit Court decision is disappointing, particularly because the court, like the FCC, failed to take seriously the reliance interests of startups, entrepreneurs, and investors on the FCC’s enforcement of net neutrality protections. The startup ecosystem has grown over the past decade precisely because of the FCC’s long history of using its authority to stop abusive ISP practices—authority the current FCC has now abandoned," said Engine Executive Director Evan Engstrom. "The court’s ruling is not all bad, however, as its rejection of the FCC’s attempt to preempt state laws will ensure that there is some regulatory check on ISP activities that harm edge providers. But preserving state authority to enact net neutrality rules does not remove the need for a uniform federal policy ensuring that all Americans have access to a free and open Internet. In fact, the court’s decision underscores how important it is for Congress to take immediate action on the Save the Internet Act, which would fully restore the FCC’s strong 2015 net neutrality rules. The House voted to adopt this legislation in April, and it’s long past time for the Senate to act. Once that legislation passes, it will reinstate the FCC’s popular rules, and ensure that startups, entrepreneurs, and consumers all have equal and open access to the Internet.”

Jonathan Spalter, president and CEO of USTelecom: “The court got it right and affirmed what anyone who has been paying attention to Washington’s net neutrality saga knows to be true: the internet is open, ISPs are investing to bring internet users the content they want, and we remain absolutely opposed to anti-consumer practices like blocking, throttling and anti-competitive paid-prioritization. The fact is the FCC’s 2017 order restored the smarter, more nimble, pro-consumer and bipartisan policy framework that has guided the internet through 20 years of openness and extraordinary growth. Where do we go from here? While we are still reviewing the details, one thing is clear: Congress must end this regulatory rinse and repeat cycle by passing a strong national framework that applies to all companies, maintains our dynamic and open internet, and sustains our global digital leadership for the next generation and beyond.”

Michael Powell, chairman of NCTA-The Internet & Television Association and former FCC Chairman: “We are gratified by the court’s decision to affirm the FCC’s ‘light touch’ regulatory framework for broadband. As the court affirmed, public utility-style regulation is particularly inapt for a dynamic industry like broadband built on technological innovation and disruption. “As a practical matter, today’s decision will have little impact on consumers’ internet experience. It does nothing to change our industry’s enduring commitment to providing consumers with the same open internet experience that has been delivered for decades. Only Congress can provide permanent, common sense open internet protections. We urge lawmakers to work together in a bipartisan fashion to craft those rules and provide certainty for consumers and businesses small and large that rely on the internet for continued growth and opportunity.” 

AT&T senior EVP and General Counsel David R. McAtee II called the decision: "a victory for U.S. broadband investment and broadband consumers everywhere. Despite dire predictions to the contrary by some when the Order was adopted, network investment has continued to grow and the open internet has continued to thrive. We look forward to addressing the narrow issues remanded for further consideration.” 

Claude Aiken, president and CEO of WISPA, which represents fixed wireless internet providers: "Although we are still carefully reviewing the D.C. Circuit’s decision, we welcome its outcome. The onerous Title II rules, which the FCC adopted in 2015, presented a significant obstacle to deployment for our members, the overwhelming majority of whom are small ISPs serving underserved rural communities. The FCC’s 2018 Restoring Internet Freedom Order (RIFO) for the most part represents the right approach to these matters – one which keeps inapt, utility regulation away from the Internet, and in doing so, promotes ubiquitous broadband deployment via the light-touch regulatory regime WISPA has favored." 

Computer & Communications Industry Association (CCIA) President & CEO Ed Black: “We are glad the court recognized deficiencies in the FCC’s effort to foreclose states from remedying the Commission’s abdication of responsibility. We believe the court got it wrong, however, in upholding the FCC’s decision to arbitrarily sideline itself from protecting consumers’ internet access. Open internet access has given everyone the ability to go anywhere online and not be steered according to business relationships. For businesses, net neutrality lets the next start-up be on equal ground with bigger businesses and allows smaller businesses to sell products and services globally. This mixed ruling could mean some states that enforce net neutrality will be more business friendly than others.”

The Internet Innovation Alliance: "Unless Congress codifies nationwide open internet rules, including the designation of broadband as an information service, we will very likely see continuation of the ping-pong at the FCC between classifications of broadband as an information service and as a telecommunications service. And open internet rules that lack uniformity will only impede innovation, as the internet does not stop at any state line. Both regulatory uncertainty and irregularity will stifle broadband investment at the very time when the nation is slated to make its largest investments ever in 5G technology." 

California State Senator Scott Winer (D-San Francisco), author of CA's net neutrality law (SB 822): "Net Neutrality is critical for a free and open internet and for our democracy. We all must have the right to decide -- and not have corporations decide for us -- where we go on the internet and what information we receive. That's why I authored Senate Bill 822 in 2018 to establish net neutrality protections in California. If the FCC won't protect consumers and ensure net neutrality, then states have an obligation to stop in, and that's what we did in California. While I'm disappointed that the federal appeals court largely upheld the Trump FCC's repeal of net neutrality, I'm thrilled that the court rejected the FCC's effort to preempt state net neutrality laws. As a result of this decision, California's net neutrality law, SB 822, remains fully intact and the most impactful net neutrality law in the country. The FCC simply has no power to order states not to protect consumers. We will continue to fight for a free and open internet, federally and at the state level."

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Benton (www.benton.org) provides the only free, reliable, and non-partisan daily digest that curates and distributes news related to universal broadband, while connecting communications, democracy, and public interest issues. Posted Monday through Friday, this service provides updates on important industry developments, policy issues, and other related news events. While the summaries are factually accurate, their sometimes informal tone may not always represent the tone of the original articles. Headlines are compiled by Kevin Taglang (headlines AT benton DOT org) and Robbie McBeath (rmcbeath AT benton DOT org) — we welcome your comments.

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Kevin Taglang

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