On October 19, 2023, the Federal Communications Commission (FCC) voted yet again to restore“net neutrality” rules to internet services. Such rules would categorize high-speed internet as a utility, like water or electricity, and prevent broadband telecom networks from blocking or slowing down online services like Google and Netflix.
The FCC consists of five commissioners and has been in a state of stalemate with only four commissioners since 2021 when Pres. Biden nominated Gigi Sohn to the Commission. However, she was a real progressive per telecom policy and her appointment was blocked by the corporate media and Sen. Joe Manchin (D-WV).
In September, the Senate approved Anna Gomez as the fifth commissioner. Her background includes serving as Sprint Nextel’s VP of government affairs and in various federal agencies including the State Department, NTIA and 12 years at the FCC.
The FCC chair Jessica Rosenworcel stated, “Now is the time for our rules of the road for internet service providers to reflect the reality that internet access is a necessity for daily life.”
The issue of net neutrality has been the subject of a roller-coaster battle at the FCC since the concept was first introduced in the early 2000s. Tim Wu, now a Columbia Law Professor, first introduced the concept of “network neutrality” in his 2003 study, “Network Neutrality, Broadband Discrimination”; Wu served in the Obama administration’s National Economic Council.
Telecom services are defined by two Congressional acts – the Communications Act of 1934 and the Telecommunications Act of 1996. The ’34 Act mandated that “communications” services be available to everyone at “just and reasonable prices.” It distinguished between Title I, less-regulated “information” or private services, and more regulated Title II, “common carrier” or public telecom services. The ’96 Act undercut the first Act by shifting key telecom functions (e.g., internet, wireless) from Title II to Title I, thus increasingly privatizing important services that appear increasingly like “common carrier” activities.
In 2010, the FCC adopted the Open Internet Order, a compromise position that was to place broadband internet under Title I as an information service while, at the same time, ensuring a form of net neutrality. Many advocacy groups opposed the regulatory sleight-of-hand. Public Knowledge, for example, criticized it, insisting the FCC “created a vague and shifting landscape open to interpretation. Consumers deserved better.”
In 2015, the then-Democratic controlled FCC adopted the 2015 Open Internet Order that classified internet service providers (ISPs) that offered “broadband services” – i.e., high-speed internet access that is faster than the traditional dial-up access – by companies like AT&T and Comcast as Title II common carriers. In 2016, the DC Court of Appeals upheld the FCC’s net neutrality rules.
However, in 2020, the Republican-controlled FCC reversed the earlier rule and reclassified internet services as a Title I information service subject to less federal regulation.
As part of an executive order issued in July 2021, Pres. Biden called for the FCC to undo some of the Trump-era changes. The appointment of Anna Gomez has, yet again, shifted the FCC’s political balance back to the Democrats and net neutrality is alive once again.
