FCC Chair Confirms Plan to Reinstate Net Neutrality Rules Eviscerated Under Trump

Yves here. For the technically-minded, below is a slightly more detailed discussion of FCC internet service provider designation that the agency plans to restore to its pre-2017 status. The very short version is that the former designation of broadband providers as falling under Title II severely restricted their ability to throttle bandwidth and traffic-discriminate, while Title I allows them to act as gatekeeper. From the Center for Democracy and Technology, arguing against the 2017 rule change that took place and the FCC now intends to roll back:

From a regulatory perspective, the heart of the net neutrality debate is about how the FCC classifies broadband internet access. This classification determines which part of the Communications Act (the Act) applies to ISPs and the scope of authority the FCC may use to regulate providers. Two years ago, after a decade of struggling to regulate ISPs under Title I of the Act, the FCC reclassified broadband internet access as a “telecommunications service.” As providers of telecommunications services, ISPs are subject to regulation under Title II of the Act. Now, Chairman Pai wants to reverse that classification, making broadband internet access an “information service” under Title I of the Act. So why all the fuss? To oversimplify, Title II explicitly provides the FCC authority to protect consumers and online businesses against “unjust or unreasonable” practices of ISPs. Title I does not….

Let’s break down the legal and policy arguments for both classifications and discuss their ramifications:

The legal arguments boil down to which definition provides a better fit for internet access. The Act defines “telecommunications” as “the transmission, between or among points specified by the user, of information of the user’s choosing, without change in the form or content of the information as sent and received.” When you click a link from your browser, the ISP delivers your message (“I want to see the information at this address”) to the host’s server, which then sends that information back to you. These messages are packaged by your computer, and the host’s server, as one or more packets, each of which is stamped with your respective addresses and other handling information. The ISP transmits the packets through its network, which connects your computer to the rest of the internet, carrying them from your computer to websites and services based on your direction.

Compare that to an “information service,” which provides the “capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications.” In the earlier days of the internet, before the explosion of third parties who now offer countless options for each of these activities, ISPs offered services like email, web hosting, and news aggregation. And because these services weren’t as widely available, many people used these included services and perhaps thought of internet access and the various additional services as one and the same. It’s true that ISPs still provide these additional services, and some customers may still use them, but for most internet users, ISPs are simply a conduit between them and the rest of the internet.

In the NPRM (Notice of Proposed Rulemaking) released by Chairman Pai, the FCC argues that internet access should be considered an information service. More specifically, the agency argues that because internet access allows people to connect to third parties that offer options for “generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information,” it provides the “capability for” those activities. By this logic, which conflates capability with access to capability, any communication technology could be considered an information service. Do ISPs offer information services? Yes. Is the internet access provided by an ISP an information service? Definitely not….

CDT, along with other internet advocates, edge providers, and the vast majority of internet users believe that some oversight and consumer protections are necessary to prevent ISPs from leveraging their gatekeeper positions (you have to go through them to reach the rest of the internet) in ways that harm consumers and competition among edge providers. We believe that, in the absence of enforceable rules, ISPs have both the ability and the incentives to do this in a variety of ways, such as charging edge providers to prioritize their traffic (paid prioritization) or using data caps and zero rating to push users towards the content and services of ISPs and their affiliates.

By Jessica Corbett, staff writer at Common Dreams. Originally published at Common Dreams

Open internet advocates across the United States celebrated on Tuesday as Federal Communications Commission Chair Jessica Rosenworcel announced her highly anticipated proposal to reestablish FCC oversight of broadband and restore net neutrality rules.

“We thank the FCC for moving swiftly to begin the process of reinstating net neutrality regulations,” said ACLU senior policy counsel Jenna Leventoff. “The internet is our nation’s primary marketplace of ideas—and it’s critical that access to that marketplace is not controlled by the profit-seeking whims of powerful telecommunications giants.”

Rosenworcel—appointed to lead the commission by President Joe Biden—discussed the history of net neutrality and her new plan to treat broadband as a public utility in a speech at the National Press Club in Washington, D.C., which came on the heels of the U.S. Senate’s recent confirmation of Anna Gomez to a long-vacant FCC seat.

Back in 2005, “the agency made clear that when it came to net neutrality, consumers should expect that their broadband providers would not block, throttle, or engage in paid prioritization of lawful internet traffic,” she recalled. “In other words, your broadband provider had no business cutting off access to websites, slowing down internet services, and censoring online speech.”

After a decade of policymaking and litigation, net neutrality rules were finalized in 2015. However, a few years later—under former FCC Chair Ajit Pai, an appointee of ex-President Donald Trump—the commission caved to industry pressure and repealed them.

“The public backlash was overwhelming. People lit up our phone lines, clogged our email inboxes, and jammed our online comment system to express their disapproval,” noted Rosenworcel, who was a commissioner at the time and opposed the repeal. “So today we begin a process to make this right.”

The chair is proposing to reclassify broadband under Title II of the Communications Act, which “is the part of the law that gives the FCC clear authority to serve as a watchdog over the communications marketplace and look out for the public interest,” she explained. “Title II took on special importance in the net neutrality debate because the courts have ruled that the FCC has clear authority to enforce open internet policies if broadband internet is classified as a Title II service.”