Net neutrality is the idea that Internet service providers (ISPs) should not be able to discriminate against different types of content by blocking or throttling connection speeds or offering paid prioritization for different Internet traffic. The FCC has attempted to accomplish this by reclassifying ISPs as common carriers under Title II of the Communications Act, thereby giving the agency more regulatory power over them.
Democratic FCC Chairwoman Jessica Rosenworcel said in her remarks before the vote that internet access is no longer just “nice to have, to have to have.” She added: “Broadband is now an essential service. Essential services that we rely on in every aspect of modern life are subject to fundamental controls.”
While ISPs generally say they are not violating net neutrality principles, they oppose the reclassification, primarily because it could give the FCC the ability to regulate their prices. In this case, the FCC has decided to forgo rate regulation with respect to ISPs, although a future decision by the agency could nullify this through further regulatory action.
The FCC introduced net neutrality rules in 2015 after a major grassroots initiative. But they were scuttled in 2017 when Trump appointee Ajit Pai led the commission and helped lead to its abolition. Meanwhile, states have stepped in with their own net neutrality laws, which advocates say have kept ISPs in check. But the industry contends that the lack of change over this period suggests federal regulations are unnecessary and fears they will hinder investment in innovation.
Although the FCC’s order largely follows that of 2015, the agency’s rhetoric and rationale have been updated somewhat. Rosenworcel has argued that the rules would give the agency greater control over internet outages and close a critical gap in its authority to target telecommunications companies that pose a national security risk by prohibiting them from offering internet services in addition to other communications services.
FCC Commissioner Brendan Carr, a Republican who strongly opposes the agency achieving net neutrality through Title II reclassification, argued during the agency’s public meeting that the move was a symptom of a larger problem. He said the maneuver was an example of how judicial deference to a federal agency’s authority in cases where the law was ambiguous had encouraged the executive branch to engage in “pressure campaigns” to get agencies to comply with its wishes .
He also argued that the FCC’s leniency in rate regulation was illegitimate, comparing it to the authority the Department of Education used to get rid of forgiven student debt. “The FCC does not presume to have the broad power to transform Title II into an entirely new legislative system by selecting which parts will apply,” he said. “The FCC is throwing everything it can think of against the wall to see if anything sticks.”
Democratic Commissioner Geoffrey Starks, who supported the rules, said he wasn’t worried about how courts would view the vote and said the FCC’s authority to apply Title II to broadband providers was “clear as day.” He added that he opposes rate regulation of ISPs, but disagrees with the idea that any affordable Internet program can be construed as rate regulation. Starks called for a “permanent funding mechanism” for the Affordable Connectivity Program, which has been providing internet subsidies to low-income consumers since the Covid pandemic. If Congress doesn’t extend it, the program will quickly run out of money.
Democrats Rosenworcel, Starks and Anna Gomez voted to approve the rules, while Republicans Carr and Nathan Simington dissented.