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Another New Beginning for Net Neutrality

Submitted on October 4, 2019
Benton Institute for Broadband & Society

Friday, October 4, 2019

Weekly Digest

Another New Beginning for Net Neutrality 

 You’re reading the Benton Institute for Broadband & Society’s Weekly Digest, a recap of the biggest (or most overlooked) telecommunications stories of the week. The digest is delivered via e-mail each Friday.

Round-Up for the Week of Sept. 30 - Oct. 4

Kevin Taglang
Taglang

Finally, after months of anticipation, the United States Court of Appeals for the District of Columbia Circuit released its decision in the latest net neutrality case. The court has tied the issue up in a nice bow and we can all stop worrying and arguing over it now. Let's turn our attention to playoff baseball! 

If only. In the hours and days since the D.C. Circuit Court issued its ruling in Mozilla Corporation vs Federal Communications Commission, the case that challenged the Federal Communications Commission's 2018 repeal of network neutrality rules, the FCC, broadband providers, and challengers (including the Benton Institute for Broadband & Society) have claimed victory. Rather than jumping into that fray, let's take a step back for a moment to examine how the decision reads.

The Bottom Line First

"We uphold the 2018 Order..." For too many, these five words are all that matter in the 186-page decision. Or, maybe, those words plus, "we decline to vacate the 2018 Order in its entirety." 

According to FCC senior officials on a call with reporters, the D.C. Circuit Court decision upheld most aspects of the 2018 Restoring Internet Freedom Order, including:

  • Broadband can be treated as a Title I information service rather than a Title II telecommunications service. [For more on this important distinction, see Information Service or Telecommunications Service?]
  • Conduct rules from 2105 that were repealed by the 2018 order remain repealed. These included the rules that prevented service providers from blocking certain traffic or offering paid prioritization. [See more on the 2015 Open Internet Rules]
  • The 2018 modified transparency rule remains in place. This rule requires broadband providers to notify customers in advance of any plans to block certain traffic or to offer prepaid prioritization.
  • Mobile broadband can be treated as a private rather than commercial mobile service, which means that the deregulatory aspects of the 2018 order apply to mobile and fixed broadband.

The Caveats

There's important language in the decision past "We uphold the 2018 Order."  The next three words are "with two exceptions." Let's take a look at the exceptions.

Preempting State Net Neutrality Laws

First, the Court concludes that the Commission has not shown legal authority to issue its Preemption Directive, which would have barred states from imposing any rule or requirement that the Commission 'repealed or decided to refrain from imposing' in the Order or that is 'more stringent' than the Order. The Court accordingly vacates that portion of the Order.

This is big and has been getting lots of ink and headlines in coverage of the decision. What it means exactly is currently being debated. 

The court notes that the FCC "was explicit that it was grounding its Preemption Directive in (i) the 'impossibility exception' to state jurisdiction, and (ii) the 'federal policy of nonregulation for information services.' Neither theory holds up." 

Under the impossibility exception, the FCC may preempt all state regulation of services that would otherwise be subject to dual state-federal control if it is impossible or impractical to separate the service's interstate and intrastate components, and the state regulation interferes with valid federal rules or policies. But the D.C. Circuit Court points out that the FCC has to identify an independent source of regulatory authority to which the preemption action would be “reasonably ancillary.” The impossibility exception "does not create preemption authority out of thin air."

The Telecommunications Act of 1996 includes a provision that states that "It is the policy of the United States ... to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation." And the FCC pointing to this language as reason to preempt states from enacting net neutrality rules. "No dice," says the D.C. Circuit as the FCC itself has read the statute as direction to adhere to the policy when otherwise exercising its authority -- policy statements are not delegations of regulatory authority. "[I]n any area where the Commission lacks the authority to regulate, it equally lacks the power to preempt state law," the court holds. 

Public Safety, Pole Attachments, and Lifeline

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.

Congress created the FCC for the purpose of, among other things, “promoting safety of life and property through the use of wire and radio communications.” But challenges to the 2018 repeal order argued that the FCC failed to "consider the implications for public safety of its changed regulatory posture." The D.C. Circuit agrees. "The Commission’s disregard of its duty to analyze the impact of the 2018 Order on public safety renders its decision arbitrary and capricious in that part and warrants a remand with direction to address the issues raised."

Similarly, the court agrees with litigants that the FCC, without reasoned consideration, took broadband outside the current statutory scheme governing pole attachments which covers telecommunications services, not information services. "Because the 2018 Order was arbitrary and capricious in this respect, we remand for the Commission to confront the problem in a reasoned manner."

Finally, litigants challenged the FCC's 2018 order on the ground that reclassification would eliminate the statutory basis for broadband’s inclusion in its Lifeline Program which subsidizes low-income consumers’ access to certain communications technologies, including broadband internet access service. The court finds that the FCC completely fails to explain how its authority could extend to broadband now that broadband is no longer considered to be a common carrier. The court remands this part of the 2018 order for the FCC to address. 

What Happens Next?

Although the D.C. Circuit's decision is a major milestone in the long net neutrality debate, it is far from the last chapter. Although it is too early to guess what exactly will happen next, what might be helpful is to consider the options various parties have in various venues.

The Courts

Any party to the case decided in the D.C. court this week could ask for further review -- either by the D.C. Circuit Court or the Supreme Court. The parties are likely picking through the decision right now considering what has been won and lost -- and what potential gains or risks are involved by additional judicial review. Any requests for additional review are likely to come over the coming months. 

In addition, some states, notably California and Vermont, have already passed their own net neutrality laws or adopted executive orders on the issue -- and challenges to those regulations await their day in court. The FCC's authority to preempt those laws may get its final test in those cases. 

State Legislatures

Thirty-four states and the District of Columbia introduced 120 bills and resolutions regarding net neutrality in the 2018 legislative session. With the D.C. Circuit opening the door for state legislation, any state now could enact its own net neutrality law governing the provision of broadband service in that state. And, of course, any of those laws could be challenged in court. 

Congress

The potential for 50 net neutrality laws and years of litigation challenging them could -- could -- induce Congress to finally address the issue. The House of Representatives has passed the Save the Internet Act, but Senate Majority Leader Mitch McConnell (R-KY) said the bill was “Dead on arrival in the Senate.” The Senate has yet to consider an alternative solution.

The 2020 Election

Finally, the deference the D.C. Circuit Court gave the FCC, even when finding the FCC's reasoning lacking, leaves the door open for a future FCC, with a new majority, to reinstate net neutrality rules. So voters picking the 117th Congress and, potentially, the 46th President, will have a big say in any future net neutrality regulation. 

All to say, this ain't over and won't be, paraphrasing Mr. Berra, till it's over. It may feel like deja vu all over again. Really, it is just a new beginning.

Quick Bits

Weekend Reads (resist tl;dr)

ICYMI from Benton

Upcoming Events

Oct 8 -- Innovation: Putting Broadband to Work (Blandin Foundation)

Oct 16-18 -- AnchorNets 2019: The 9th Annual SHLB Conference (SHLB Coalition)

Oct 30 -- Keynote Address -- Broadband Policy for America’s Future: A Vision for the 2020s (Broadband Communities)

The Benton Institute for Broadband & Society is a non-profit organization dedicated to ensuring that all people in the U.S. have access to competitive, High-Performance Broadband regardless of where they live or who they are. We believe communication policy - rooted in the values of access, equity, and diversity - has the power to deliver new opportunities and strengthen communities.

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Kevin Taglang

Kevin Taglang
Executive Editor, Communications-related Headlines
Benton Institute
for Broadband & Society
727 Chicago Avenue
Evanston, IL 60202
847-328-3049
headlines AT benton DOT org

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