Regulatory classification

The Supreme Court has agreed to hear a case in early 2024 that could impact how much regulatory discretion the FCC has over the communications industry. The court agreed to hear the case of Relentless Inc., et al. v. Dept. of Commerce, et al. The case is about a federal rule requiring fishing companies to pay for government monitoring of their herring catches.

The Benton Institute for Broadband & Society, Public Knowledge, Free Press, the United Church of Christ, OC, Inc. Leadership Conference, USC Gould School of Law and Office of the County Counsel, and the County of Santa Clara spoke with Federal Communications Commission General Counsel staff on Oct. 5, 2023, regarding net neutrality.

A fact sheet on how net neutrality protects consumers and online freedom of speech. Open internet protections have long had widespread – upwards of 80 percent – support from the American people who have come to expect that they will be able to access all lawful content on the internet uninhibited by their broadband service provider’s business decisions. Across administrations from 2005 to 2018, it was the clear policy of the FCC to enforce open internet standards.

One of the provisions of the Infrastructure Investment and Jobs Act (IIJA) is that it requires the Federal Communications Commission to “take steps to ensure that all people of the United States benefit from equal access to broadband internet access within the service area of a provider of such service.” In legalese, the term equal access, in this case, means that consumers should be able to expect to get the same speed, capacity, and latency as other customers buying the same product from the same internet service provider (ISP) sold elsewhere.

On September 26 at the National Press Club, Federal Communications Commission Chairwoman Jessica Rosenworcel laid out her arguments for reclassification. Among them was a claim that the lack of broadband competition makes Title II necessary. One can make coherent and serious arguments supporting Title II and net neutrality. But Title II because of the state of competition? No. The Chairwoman is right that areas actually served by only one provider and likely to continue to be served by only one provider really do require more oversight than areas with more competition.

Network neutrality mandates have been made out either as necessary to ensure a level playing field in online markets or, alternatively, as overly restrictive regulation preventing innovation and investment. However, there is little empirical research on the consequences of data throttling, which becomes legal without network neutrality regulations. We combine throughput levels measured for mobile internet service providers in the United States with usage data to explore how sensitive users are to such practices.

The Federal Communications Commission currently regulates broadband internet access service (BIAS, if you will) as an "information service" under Title I of the Communications Act. As the FCC contemplates reclassifying BIAS as a telecommunications service under Title II's common-carrier framework, the question is whether the FCC has authority to do so. Federal appeals courts have upheld previous FCC decisions on whether to apply common carrier rules to broadband.

Two areas in the draft Notice of Proposed Rulemaking on Safeguarding and Securing the Open Internet: 

Currently, no federal agency can effectively monitor or address broadband outages that threaten jobs, education, and public safety. And while the Federal Communications Commission has acted on a bipartisan basis to secure our communications networks against companies controlled by hostile foreign governments, the lack of specific authority over broadband leaves open a national security loophole.

Over 40 Republican senators signed a letter to Federal Communications Commission Chairwoman Jessica Rosenworcel urging her to abandon her proposal to reinstate net neutrality rules. Re-imposing heavy-handed, public-utility regulations on the internet, they wrote, would threaten the progress our country has made since 2017, and it would steer our country out of the fast lane and into a world of less competition, less choice, less investment, slower speeds, and higher prices. Further, the FCC lacks this statutory authority over broadband internet access.