Battle Continues on Net Neutrality, Though Quieter Than the Past

Relative to the epic battles preceding the FCC’s last two votes on net neutrality rules, in 2015 and 2017, things have been relatively quiet on net neutrality since Chairwoman Jessica Rosenworcel announced she would seek a vote on an NPRM Oct. 19 (see 2309260047). There have statements for and against, but nothing compared with the fights of the past, industry observers told us.

"There is battle fatigue on both sides of this old debate,” said a former senior FCC official and longtime regulatory lawyer: “A lot of sound and fury won't change the outcome.” Commissioner Brendan Carr continues to lead the fight against the NPRM and scheduled a press call Tuesday. On Friday, Carr called net neutrality “TITLE II TO NOWHERE” on X, formerly known as Twitter.

"Put me down as a maybe for the vote next week" on the NPRM, Carr said during an American Enterprise Institute webinar Thursday. "My guess is that we'll move to a final order in a bit of a truncated way but still sometime in the late spring is my guess," he said: "The order will look basically the same as the NPRM if I had to guess."

“Net neutrality was much bigger several years ago due to concerns that the internet would end without it,” said Summit Ridge President Armand Musey: “Years have passed, and the internet is still working well. In fact, the internet performed spectacularly during COVID-19 even though the traffic patterns the internet infrastructure was built for changed dramatically almost overnight, with people working and going to school from home.” Relative to the fights of the past, “the temperature is now much lower,” he said.

“All sides are keeping their powder dry,” said Public Knowledge Senior Vice President Harold Feld. The administration and the Democratic leadership in Congress “made it clear they were 100% behind this, and all three Democratic commissioners have made their intention to start this process clear,” he said.

Rosenworcel also moved quickly to propose an NPRM, “which undermined the ability of opponents to organize any sort of massive resistance,” Feld said: “If you are on the ISP side, why waste money trying to derail things at this stage, when that is virtually impossible? You are going to save your push for the rulemaking where you can try to delay [an order] or try to influence specifics of the final rule.”

ISPs may “realize they cannot win the politics on this and are going to put more effort on litigating the issue instead,” emailed Benton Institute for Broadband & Society Senior Counselor Andy Schwartzman. “If that is right, and I reiterate the ‘if,’ it may be a miscalculation. I am quite confident that reclassification will hold up in court,” he said.

Filings at the FCC by opponents outnumber those by supporters. But advocates are also making their case, including Rosenworcel, who laid out the need for rules in a fact sheet last week (see 2310110073). Net neutrality advocates, including the Benton Institute, Public Knowledge and Free Press, urged the FCC to address the status of the pending petitions for reconsideration of the 2018 order repealing Title II rules “in conjunction with any actions it may take.”

“If you’re unhappy with the high cost and low quality of your internet service -- and who isn’t -- the reason is easy to pinpoint,” said a Los Angeles Times opinion piece last week by business columnist Michael Hiltzik: “It can be found in an ill-considered, cynical and overtly pro-business decision in 2018 by the Trump-controlled Federal Communications Commission to abdicate its authority over broadband internet service and repeal rules guaranteeing network neutrality, a core principle of the open internet.”

Others said opponents of Title II regulation won’t concede defeat.

'Clown Show'

“Any perceived lack of ‘ruckus’ by those actually providing dignified opposition, rather than the clown show produced in the past by advocates, should not be interpreted as support for the item's content or the underlying process,” emailed former Commissioner Mike O’Rielly. "The fact that advocates in favor of net neutrality have generally moved on, don't care, or fallen asleep should be telling, but people I speak with are aghast at the lazy, poorly crafted, shifting imaginary reasoning and intellectually flawed NPRM,” he said: “It's as though the commission is disconnected from experience and market reality, and its desire to hide the truth on rate regulation and preserving regulatory uncertainty is not going unnoticed.”

"The muted response, especially from the advocates who foresaw an apocalyptic end to the internet as we know, indicates that they realize their fear campaign was nonsense,” said Jonathan Cannon, R Street fellow-technology and innovation and former aide to Commissioner Nathan Simington. None of the negative predictions came true and the internet has thrived since the 2017 order, he said.

None of the commission Democrats has been able to “articulate a need for Title II other than that it had to be done,” Cannon said: “This time net neutrality isn't even the focus of the order. It's a minuscule part of a discombobulated order looking at national security, public safety, privacy and other unrelated issues.”

Things seem quieter but more because advocates have had less to say, said Jeff Westling, American Action Forum technology and innovation policy director. “The strategy for proponents of reclassification is to keep this out of the news and make it seem like reclassification is business as usual rather than the significant regulatory change that it would be,” he said. Network neutrality and Title II classification aren’t the same thing and “while Title II classification can allow for more robust net neutrality rules, proponents of reclassification want to use the myriad of other authorities in Title II for a variety of different policy goals.”

“Everyone is playing to type, which is kinda boring,” emailed New Street’s Blair Levin: “It also appears to be quieter because there are so many other things of greater importance going on.”

Several industry and consumers groups continue to lobby the FCC on the draft NPRM and met with aides throughout the week to suggest edits (see 2310120061). Lumen told aides to Commissioner Anna Gomez the item should seek comment on whether any of the proposed rules should apply to internet traffic exchange, said an ex parte filing posted Friday in docket 23-320.

The Wireless ISP Association made ex parte filings based on meetings with staff for all five commissioners, including Gomez, Friday. “As written, the Draft NPRM contemplates a ‘one size fits all’ approach for every ISP, regardless of their service area or size,” WISPA said: The draft NPRM “must be more explicit in contemplating substantial steps to eliminate the negative impact of common carrier regulation on small providers, the industry sector least able to bear the cost of such regulation while maintaining service quality and expanding service availability to areas that would otherwise be unserved or underserved.”