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FCC advances net neutrality rules reviving broadband fight

Jessica Rosenworcel, chairwoman of the Federal Communications Commission, testifies during a House Energy and Commerce Committee Subcommittee hearing on March 31, 2022, in Washington, D.C.    (Kevin Dietsch/Getty Images North America/TNS)
By Todd Shields and Jessica Nix Bloomberg News

U.S. regulators voted Thursday to reinstate rules aimed at ensuring that everything on the internet is equally accessible — a principle known as net neutrality that has stoked debate and controversy across technology and telecom industries for more than two decades.

The U.S. Federal Communications Commission on a 3-to-2 party-line Democratic-led vote advanced the revival of net neutrality, in essence saying fast internet access is a basic telecom service. The rule needs another vote to become final. That would re-establish the FCC’s authority to police broadband providers for any attempts to block or throttle back internet traffic for some while prioritizing access to others who are willing to pay more.

The debate over government’s role in regulating internet access has raged around the world for years. The U.S. government’s approach has changed dramatically at times depending on the administration. Under former President Donald Trump, net-neutrality rules were gutted. Under President Joe Biden, the administration has made the revival of them a high priority. The proposal that the FCC considered on Thursday, put forth by Chairwoman Jessica Rosenworcel, a Democrat, would see to that.

The FCC by quashing net neutrality rules in 2017 has been “on the wrong side of history, the wrong side of the law and the wrong side of the American public,” Rosenworcel said. “Today we begin a process to make this right” with “enforceable right-line rules.”

Proponents of net-neutrality rules have said fast, reliable broadband service is a basic societal need today that governments must protect on behalf of households and businesses. Rosenworcel’s proposal would bar broadband providers from blocking or slowing internet service and forbid “fast lanes” for favored traffic — for example from business partners who pay for quicker passage.

Critics say the broadband market is working well, and that the FCC’s move heralds a dangerous expansion of administrative power.

“Broadband speeds in the U.S. have increased, prices are down, competition has intensified, and record-breaking new broadband builds have brought millions of Americans across the digital divide,” Commissioner Brendan Carr, the FCC’s senior Republican, said before the vote. “I would encourage the agency to reverse course.”

Cable and telephone providers have opposed the new rules. Thursday’s vote will be followed by a comment period extending into the new year before the second vote. Rosenworcel is expected to prevail because she leads a 3-to-2 Democratic majority. A legal challenge is certain to follow.

Michael Powell, the chief executive officer of NCTA-The Internet & Television Association that represents cable providers including Comcast Corp. and Charter Communications Inc., called the proposal a “sweeping command and control framework” and warned that it would dissuade providers from building out networks to hard-to-serve rural areas.

In a call with investors on Thursday, AT&T Chief Executive Officer John Stankey called the rules “an unnecessary partisan issue.” Networks performed well throughout the pandemic, he said, and “no customers are complaining about what’s going on on that front.”

COVID-19 era lockdowns that deepened isolation for households without broadband actually worked to reaffirm that internet service is a necessity akin to utilities, according to rule proponents. The sight of children using restaurant WiFi signals to do schoolwork in parking lots spurred Congress to massively fund broadband network construction, including through a $42 billion flagship subsidy program.

Rosenworcel has emphasized portions of the proposed rules that extend beyond equal treatment on the internet to address national security and public safety concerns. The FCC needs expanded power to forge updated cybersecurity standards and to deny network access by foreign-owned companies deemed national security threats, the agency said in a statement.

The regulations will face legal challenges. The U.S. Supreme Court has in the past limited the authority that federal agencies have in making major decisions without having been directed by Congress to do so. But the FCC has said the protections pass judicial muster, in part because they’ve been affirmed by judges before.

Bloomberg Intelligence analyst Matthew Schettenhelm gives companies an 80% chance of overturning regulations adopted by the FCC. “If so,” he said in a Sept. 29 note, “only Congress would be able to adopt federal broadband limits.”