Regulatory classification

The FCC got it wrong when it repealed net neutrality. The decision put the agency on the wrong side of history, the American public, and the law. And the courts agreed. That’s why they sent back to this agency key pieces regarding how the rollback of net neutrality protections impacted public safety, low income Americans, and broadband infrastructure. Today, the FCC is seeking comment on how best to move forward. My advice? The American public should raise their voices and let Washington know how important an open internet is for every piece of our civic and commercial lives.

In Mozilla Corp. v. FCC,  the U.S. Court of Appeals for the District of Columbia Circuit upheld the vast majority of the Federal Communications Commission’s 2017 decision to end net neutrality protections. However, the court also remanded three discrete issues for further consideration by the FCC. On February 6, 2020, the D.C. Circuit denied all pending petitions for rehearing, and the Court issued its mandate on February 18, 2020. With this Public Notice, the Wireline Competition Bureau seeks to refresh the record regarding the issues remanded to the FCC by the Mozilla Court.

The challenge for those of us charged with regulatory authority over certain technologies is to explain, educate, and, to some degree, manage expectations. Added to that is the obligation to enable the proper environment for innovation, and only take regulatory action when absolutely necessary, and only to the extent that doing so produces greater benefits relative to costs. In other words, our concern about any potential downside cannot be an automatic bar to further innovation, lest we expect to return to the days of dwelling in caves without fire.

Comcast reduced capital spending on its cable division in 2019, devoting less money to network extensions and improvements despite a series of government favors that were supposed to accelerate broadband expansions.

If Democrats are able to wrest control of the White House and Senate in November, dramatic changes could come to the Federal Communications Commission and US communications policy. Net neutrality would be the major issue revisited. A Democratic-controlled FCC might seek to re-establish a role for the FCC in ISP privacy regulation, especially if Congress does not enact a federal consumer privacy law covering ISPs.

[Ari Fitzgerald is a partner at Hogan Lovells]

With the first year of the 116th Congress coming to a close, House Commerce Committee Chairman Frank Pallone, Jr. (D-NJ) and Communications Subcommittee Chairman Mike Doyle (D-PA) highlighted the Subcommittee’s work to restore network neutrality, combat the robocall epidemic, secure America’s telecommunications supply chain, fix faulty broadband maps, and more. The Subcommittee held 12 hearings, three markups, and passed 11 bills in 2019. Accomplishments listed include:

The fight to reinstate network neutrality rules could return to federal court, if public-interest advocates, consumer groups, and tech companies including Mozilla get their way [as well as the Benton Institute for Broadband & Society]. The groups asked a panel of judges to rehear a case that upheld a Federal Communications Commission decision to repeal the government’s open-Internet rules.

On December 10, 2019, Senate Democrats once again demanded, via a call for unanimous consent, an immediate vote on the Save the Internet Act, legislation that reverses the repeal of net neutrality protections.

House Communications Subcommittee Chairman Mike Doyle (D-PA) is confident that if Vice President Joe Biden were to be elected president, he would work with the Democrats to restore net neutrality rules. Net neutrality tends to be an important issue with a lot of people in the tech community and younger voters that want to see a level playing field and make sure ISPs don't block content, he said, but that while it is an important issue, he doesn't see it as a "primary" issue (no pun intended).

Sens Ed Markey (D-MA), Maria Cantwell (D-WA), and Ron Wyden (D-OR) took to the floor of the Senate to demand an immediate vote on the Save the Internet Act, legislation that reverses the repeal by President Donald Trump’s Federal Communications Commission of critical network neutrality protections. The Save the Internet Act enshrines the three legacy net neutrality principles – no blocking, no throttling and no paid prioritization – and empowers the FCC to prohibit unjust, unreasonable and discriminatory practices.