COMMUNICATIONS DAILY: SEEKING MORE INTERNET OVERSIGHT, ROSENWORCEL PUSHES FOR TITLE II AUTHORITY REINSTATEMENT

The FCC's abdicating its internet oversight authority in 2017 largely neutered the agency's ability

to protect online privacy and to require ISPs to address lengthy outages, Chairwoman Jessica

Rosenworcel said Tuesday as she announced the agency was moving to take that authority back.

Reclassification of broadband as a service under Title II would end having to often jury-rig legal

justifications for actions the agency is taking, she said, saying October's agenda will include a

draft NPRM on reinstating the agency's 2015 net neutrality rules. The move met loud criticism,

including from inside the FCC, as well as support.

“I didn’t waste time,” Rosenworcel quipped to one of the people in attendance before her speech

at the National Press Club, seemingly referring to the net neutrality announcement coming a day

after Anna Gomez’s swearing in as the third Democrat on the commission. Some had expected

net neutrality moves by the Rosenworcel FCC once it had that Democratic majority (see

2309070081). At the announcement were representatives of numerous net neutrality advocacy

groups, including Public Knowledge, Common Cause and Free Press.

Networks need to be "fast, open and fair," Rosenworcel repeatedly said, saying the 2017 decision

left it with limited ability to do that. Given the indispensable nature of internet access to modern

life, "this repeal put the FCC on the wrong side of history, the wrong side of the law," she said.

She said its Title II authority gave the agency the ability to intervene when public safety access is

throttled. She said the FCC's Section 214 authority to take away authorizations from stateaffiliated companies is compromised due to its lack of Title II oversight. She said broadband not  being classified as a Title II service also makes it tougher for broadband-only providers to get pole attachment rights, and the agency would have more power under Title II to tackle robotexts.

Restoring Title II oversight means a uniform nationwide legal framework instead of a patchwork

of state laws and contracting polices, Rosenworcel said. She waved off the argument Title II

oversight is a stalking horse for rate regulation.

Minority Commissioner Opposition

Commissioner Brendan Carr urged Rosenworcel, as he did last week, not to propose a net

neutrality order likely to be overturned by the U.S. Supreme Court under the major questions

doctrine. Carr again cited a paper last week from Obama administration U.S. Solicitor General

Donald Verrilli and ex-Principal Deputy Solicitor General Ian Gershengorn that urges the FCC

not to bring back rules based on the rescinded 2015 order.

“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,” Carr said: “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.” Commissioner Nathan Simington didn’t comment Tuesday. But at

a March conference, he addressed the topic at length, suggesting the U.S. has “de facto net

neutrality at this moment.” Simington also predicted Title II regulation “might face greater

scrutiny” in the courts than it did after the 2015 order.

“Just like there are Flat-Earthers, net neutrality is broken philosophy rejected by practical

experience, market realities and rational thought,” emailed former Commissioner Mike O’Rielly:

“The NPRM text will be telling, but the notion that broadband service is so important to deserve

massive government regulation that absolutely will slow its deployment and reach to unserved

Americans -- a supposed priority and legacy of the Biden Administration -- is lunacy,” he said.

“The FCC leadership's decision to revisit so-called 'net neutrality' regulations is a complete and

utter waste of time.” emailed former FCC Chair Ajit Pai. “It's unfortunate that almost 1,000 days

into the Biden Administration, FCC leadership can't come up with an accurate map of broadband

availability, hasn't held a single spectrum auction that it started, hasn't improved Wi-Fi, and

hasn't stemmed the increasing waves of robocalls overwhelming consumers -- but is determined

to waste enormous time and effort on an issue that matters only to left-wing Beltway activists,

Big Tech, and a few (alleged) comedians.” Arguments that the FCC has a long legal history of

authority over common carriers and communications services aren’t likely to protect an eventual

Title II net neutrality order from the U.S. Supreme Court’s major questions doctrine, said Wiley

attorney Tom Johnson, who was general counsel of the FCC under the previous administration.

Though the Communications Act gives such authority to the FCC, under the doctrine Congress’

desire to “punt” doesn’t mean a matter isn’t a major question that they can’t delegate, he said.

Johnson also said Rosenworcel’s invocation of matters such as national security could

disadvantage the agency in a court battle, because Congress explicitly acted on equipment

security, undercutting the idea that such authority belongs to the FCC. Johnson said he will be

particularly interested in whether the NPRM proposes allowing state net neutrality regimes such

as California’s to exist, and whether it deviates from the 2015 version on matters such as rate

regulation. “Title II is a very explcit major question,” said University of Minnesota's Christopher

Terry, but it isn’t “crystal clear” how the court will react to FCC arguments about the agency’s

longstanding authority.

Supporting the move, former Chairman Tom Wheeler emailed that the Title II proposal "will

rectify the confusion resulting from the FCC’s previous failure to lead on this important topic.

Both Republican and Democrat FCCs have tried to provide such oversight for the most important

network of the 21st century."

Senate Commerce Committee Chair Maria Cantwell of Washington and a bevy of other

Democratic lawmakers praised Rosenworcel for pursuing a Title II net neutrality proposal.

Gomez’s swearing in means the FCC “finally has the power to take action on the priorities

important to the American people,” including “delivering on net neutrality,” Cantwell said

in a statement.

“We are thrilled” Rosenworcel is “acting decisively to protect the free and open internet for all Americans,” said House Commerce Committee ranking member

Frank Pallone of New Jersey and Communications Subcommittee ranking member Doris

Matsui of California in a statement. “We urge all of the Commissioners to support

reestablishing the agency’s authority over broadband internet service,” which the FCC

needs “to effectively protect consumers, promote affordable access to the internet, enhance

public safety and take other important steps to benefit the American people.” Sens. Ed

Markey of Massachusetts and Ron Wyden of Oregon, who led a Monday letter urging

Rosenworcel to pursue Title II reclassification, also praised the plan.

House Commerce Chair Cathy McMorris Rodgers, R-Wash., and Communications Chairman

Bob Latta, R-Ohio, delivered a succinct denunciation of Rosenworcel’s plan. “Despite constant

fear mongering, this debate was settled in 2017 when the Internet didn't break following the

repeal of heavy-handed FCC regulations,” the Republican leaders said.

A host of groups and advocates announced their support. "Without TItle II authority, the FCC is

left in a position where it must beg for pledges and promises from broadband providers to

participate in closing the digital divide, rather than requiring it from these local monopolies,”

said Public Knowledge CEO Chris Lewis. “Ensuring the nondiscriminatory provisioning of

broadband internet access service has already been deemed to be within the FCC’s statutory

authority,” CCIA Chief of Staff Stephanie Joyce said. “Reinstating those protections will ensure

that America’s digital economy is inclusive, open, and stable.” Restoring net neutrality “is not a

controversial move,” Fight for the Future Director Evan Greer said. “An overwhelming majority

of Americans from across the political spectrum support it,” referring to a 2022 University of

Maryland questionnaire by Nielsen.

“Powering up an outdated regulatory time machine to impose rules designed for a long-forgotten

era runs directly counter to, and will likely derail, the critical achievement we are so close to

reaching -- universal connectivity,” USTelecom CEO Jonathan Spalter said. The proposal

“would hamper the development of the Internet at a time when consumers need it most,” said Joe

Kane, Information Technology and Innovation Foundation director-broadband and spectrum

policy: “Proponents of utility-style regulation of the Internet have been proven wrong by history.

Despite their predictions of doom, the Internet thrived before and after the blip of Title II

regulations five years ago.”

“As a matter of policy, it’s wrong to go down this road again when there's no evidence of a

problem justifying new burdensome regulations,” Free State President Randolph May said. “As a

matter of law, it’s a big blunder because it’s very likely the Supreme Court will determine that

any FCC action reimposing net neutrality regulations is a 'major question' and Congress has not

clearly authorized the agency to exercise the power it claims,” he said.

“Despite dire predictions, the internet has thrived in the absence of utility-style net-neutrality

regulations,” said Kristian Stout, International Center for Law & Economics director-innovation

policy. Stout also questioned whether the FCC has the authority to impose Title II regulation on

broadband: “As the U.S. Supreme Court has made clear through its ‘major questions’ doctrine,

federal agencies cannot make major regulatory moves without explicit authorization from

Congress.”

“The original justification for accessing sweeping Title II authority has become obviously thin,”

NCTA CEO Michael Powell said. “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,” he said. Powell predicted “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.”

Details remain to be seen, but "twentieth-century utility-style rules are not needed at this time,”

the Wireless ISP Association said: “The marketplace has thrived in the very absence of such

regulation. Low prices, capex output, and technological and service innovation abound.”

In her speech, Rosenworcel also made a plea for avoiding some of the "ruckus" that

accompanied previous net neutrality debates, such as death threats received by Chairman Ajit

Pai. "Make some noise ... but keep it in the lines," she said.

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