On February 1, 2019, the Benton Foundation joins a host of public interest organizations, states, and businesses that are arguing that the United States Court of Appeals for the District of Columbia Circuit should overturn the December 2017 Federal Communications Commission order that eliminated strong, enforceable net neutrality rules. An internet without net neutrality is a threat to free speech and democratic participation online. Without net neutrality protections, broadband providers are free to interfere with lawful content and services. An internet without net neutrality will stifle innovation. Broadband providers will be able to favor their own content and services over that of other speakers and impede new services from ever getting a chance to enter the marketplace. An internet without net neutrality will hurt small businesses most as broadband providers impose fees for priority access to their customers. It’s not just about the breadth of opportunities the internet can deliver, or how swiftly we can grow our economy. Fundamentally, the future of net neutrality is about the future of our democracy and what we as a society are able to achieve together. We will continue to fight for it.

Adrianne B. Furniss is the Executive Director of the Benton Foundation.

Andrew Jay Schwartzman is the Benton Senior Counselor at the Public Interest Communications Law Project at Georgetown University Law Center's Institute for Public Representation (IPR).

I thought I would point out some of the more fun arguments that may come up on Feb 1 in the oral argument in Mozilla v. FCC, the challenge to the Restoring Internet Freedom Order (RIFO). As always, keep in mind that oral argument is a perilous guide to the final order, and the judges on the panel have a reputation for peppering both sides with tough questions. 

Repeal of Section 257(c) Kills RIFO On A Technicality -- If you read the RIFO, you will find that the FCC systemically eliminated every possible source of FCC authority over broadband and preempted the states from creating their own net neutrality rules, but used Section 257(c) to impose a transparency requirement. After the FCC adopted the RIFO, Congress eliminated Section 257(c) as part of the RAY BAUM’S Act. The cherry on the top of winning this argument is that the major champion of pushing through the RAY BAUM’S Act was then-Representative Marsha Blackburn (R-TN). So if the court accepts this argument, it will be now Senator Marsha Blackburn who accidentally saved net neutrality and Title II.

The FCC Wins on Reclassification and Loses on Preemption: The Trump Administration and the ISP industry have challenged various state net neutrality laws on the grounds that the FCC preempted them. Given that we are going to spend a chunk of time at oral argument on this, it’s kind of a surprise that no one has really talked about what would be the ISP’s worst possible result — no federal rule, an FCC powerless to preempt the states, and 50 different state rules.

Internet access is an indispensable determining factor when it comes to opportunities and resources. Susan Crawford, author and Harvard Law professor, reflects on the monopoly that companies hold over the service, quality and availability of fiber optic internet service. She points out that with little to no government regulatory infrastructure, or representatives with the necessary know-how, provider incentives rarely align with the public’s best interest. “My fear is that we’ve lost the idea that government actually helps people have better lives,” she wrote.

At State of the Net, much of Federal Communications Commissioner Brendan Carr's speech focused on 5G and on the "real challenge" from China, which he said has deployed 5G at five times the pace of the US -- a timely comment in the midst of the Huawei controversy. He stopped short of promising special consideration for US 5G projects, but he cautioned against establishing policy barriers. "I want to let the private sector compete" without restraints from local government agencies, on topics such as tower deployment, he said. Commissioner Carr stressed that, "2019 will be the year of 5G," which will trigger "massive infrastructure" construction and "lots of new jobs."

Schools and libraries rely on the Federal Communications Commission’s E-Rate program to ensure that they can receive affordable, high-speed broadband so they can connect today’s students with next-generation learning opportunities. An FCC decision in 2000 limited E-Rate’s use for this purpose by requiring schools and libraries to amortize over three years upfront, non-recurring charges of $500,000 or more, including charges for special construction projects. This amortization requirement increased costs for E-Rate supported builds and created uncertainty for applicants about the availability of E-Rate funding for the second and third years of the amortization cycle. In 2014, the Commission suspended the requirement through funding year 2018 in order to lower these barriers to broadband infrastructure investment.

Our experience over the past few years suggests that allowing the amortization requirement to be restored would decrease broadband investment while increasing administrative burdens, and that eliminating the requirement would not create a drain on E-Rate funding. Therefore, we now propose to eliminate the amortization requirement and we waive the requirement for the duration of this rulemaking. Through these measures, we seek to further the Commission’s goal of closing the digital divide by facilitating and promoting increased broadband infrastructure deployment to our nation’s schools and libraries. 

Twitter revealed that it had removed thousands of malicious accounts thought to have originated in Iran, Russia and Venezuela for spreading disinformation online, including previously undisclosed efforts to target the 2018 US midterm election. In the months before American voters went to the polls, some of these campaigns with foreign ties sought to stoke social and political unrest around hot-button issues, the company said, echoing tactics that social-media companies have spent two years trying to counter. The approach had been adopted by the Internet Research Agency (IRA), an organization with ties to the Russian government, two years earlier in an attempt to steer the 2016 presidential election in favor of Donald Trump. Twitter said it removed 418 accounts thought to have originated in Russia before Election Day last November but declined to specify exactly when and said it could not link the efforts definitively to the IRA. Carlos Monje, Jr., Twitter's director of public policy, said foreign attempts to manipulate Twitter were “far less” prevalent than in 2016.