Remand Order's 3-2 Approval Seen Not Being Last Word on Net Neutrality

Though ideally the remand order would "provide certainty and finality to this matter, the truth is that some will always seek to return to the broken Title II regime," Commissioner Mike O'Rielly said. He added the FCC needs to be sure not to take actions that would undermine the order or make it vulnerable.

Everything the FCC has done on net neutrality, including orders and blog posts, has been fully litigated, quipped Commissioner Brendan Carr, saying he doesn't see a path forward for challengers. Tuesday's order "was a pretty short punt" since the U.S. Court of Appeals for the D.C. Circuit previously upheld the vast bulk of the agency's 2017 net neutrality rollback, he said.

Commissioners Jessica Rosenworcel and Geoffrey Starks had several-minute dissents totaling more than 3,600 combined words. The 2017 net neutrality rollback didn't do anything to help close the digital divide, and Tuesday's order on three issues remanded by the D.C. Circuit "is a set of cobbled-together arguments designed to tell the court to go away," Rosenworcel said. The FCC "has blessed [ISPs'] ability" to discriminate and manipulate online traffic, and consumers often have no competitive choices among provides, she said.

Both Pai and Carr referenced “stress tests” of how U.S. broadband networks handled spiking data demands from the COVID-19 pandemic and major infrastructure investments of recent years as proof the FCC’s deregulatory approach bore fruit. Starks discounted those assertions: "While capital investment decisions may not take place in a regulatory vacuum, they are based on multiyear business plans, anticipated market conditions, and technology cycles. They don’t turn on a dime with the FCC’s actions."

The net neutrality fight "isn't over," Starks tweeted, noting the election "may dictate whether we affirm the deregulatory path adopted by the majority or take a different course."

Lamenting the personal attacks, threats and invective that he and other majority commissioners faced in the 2017 net neutrality rollback, Pai said opponents "waged one of the most dishonest scare campaigns I’ve ever seen. Fortunately, the fibs, fables and farrago of fabrications didn’t carry the day." He also criticized Twitter's blocking of a New York Post story. Twitter "ironically supported so-called 'net neutrality,' and now no progressive politician or regulator will mention it, much less criticize it," he said. "So much for a principled stand for an open Internet."

Reaction

Reactions from Capitol Hill split along party lines. Democrats vowed to continue pushing for a return to the 2015 rules. Republicans praised the Pai FCC’s record on net neutrality. House Speaker Nancy Pelosi of California tweeted Democrats “will not give up the fight to restore” the 2015 rules.

“Millions of Americans rely on broadband to work and study from home," and many "don’t have the internet access they need,” House Commerce Committee Democrats tweeted. “We stand with them, and will fight” until the 2015 rules are “fully restored.” Communications Subcommittee Chairman Mike Doyle of Pennsylvania, who led the House version of the Save the Internet Act net neutrality bill (HR-1644), retweeted Democrats’ tweets in favor of the measure, including those from Commerce Vice Chair Yvette Clarke of New York and Rep. Anna Eshoo of California. HR-1644 and Senate companion S-682 would restore reclassification of broadband as a Title II service (see 1904100062).

Lead S-682 sponsor Sen. Ed Markey, D-Mass., said he “will not rest until net neutrality is back on the books. The stakes are just too high for the future of the American economy and our democracy.” The FCC’s remand order flies “in the face of the reality that Americans confront today -- the urgent need for access to reliable and affordable broadband free of corporate control,” he said in a statement: “Without net neutrality protections, it’s just a matter of time before big broadband providers start raising prices" and slowing speeds.

House Commerce Republicans countered Democrats’ criticism, tweeting “internet speeds have increased by nearly 68% since Republicans restored internet freedom in 2017. By the way, we’re still waiting on a reply for our request from months ago to hold a hearing on closing the digital divide and homework gap. Americans deserve better.” The Republicans seek a hearing on ways to improve broadband access amid the pandemic (see 2006050053).

The remand order approval got public praise and brickbats.

The vote "is an important step towards ending the litigation that has arisen out of the Restoring Internet Freedom Order,” the Internet Innovation Alliance said in a statement. “Title II proponents’ predictions of anti-competitive behaviors by service providers have failed to materialize,” the group said. “This latest clarification reaffirms the successful light-touch regulatory framework that allowed the internet to grow and thrive,” said Dan Savickas, FreedomWorks regulatory policy manager: “This order will lead to continued investment in America’s broadband.”

Tuesday's approval is "unhinged," said New America's Open Technology Institute Senior Counsel Joshua Stager. Despite people without internet access hurting during the pandemic, "the Trump Administration chose today to give another gift to the telecom industry while continuing to do nothing to help people stuck on the wrong side of the digital divide. The FCC needs to restore net neutrality, expand internet connectivity, and get its priorities straight."

“Americans have no guarantee that critical communications over broadband will be delivered since net neutrality was repealed,” said Incompas President Chip Pickering: “Large ISPs have imposed data caps that have raised prices on consumers during the pandemic. Moreover, large ISPs have responded to the net neutrality changes they demanded by firing workers, cutting broadband services and accumulated record levels of debt.” Former Commissioner Michael Copps, now at Common Cause, tweeted applause for Rosenworcel and Starks “for their valiant and continuing efforts to stop the Ajit Pai wrecking ball on net neutrality. The public interest is their mantra.”

“This vote represents another step in the Pai FCC’s abandonment of its basic public interest and statutory duty to protect broadband users,” said John Bergmayer, Public Knowledge legal director: “The FCC has decided that deregulation is more important than protecting public safety communications and promoting and encouraging the deployment of affordable broadband.” The "Trump FCC doubles down on the complete abdication of its responsibility,” emailed Gigi Sohn of the Georgetown Law Institute for Technology Law & Policy. “In its fervent yearning to free the broadband industry of all oversight, the FCC once again relies on an argument that has been proven time and again to be false -- that reclassifying broadband as an unregulated information service will result in greater investment in broadband networks, more competition and lower prices.”

Meeting Notebook

ILECs and CLECs reaching a compromise on the contentious unbundling/resale issue “is nothing short of remarkable,” Pai said. The other commissioners also applauded the Incompas/USTelecom dark fiber and line access agreements (see 2009150063). Carr said the Telecom Act has successfully encouraged investment and competition, but technology changes let formerly siloed industries compete against one another and agency rules have begun to hamper that competition. "It's time to take a fresh look at our rules," he said. The minority commissioners partially dissented on aspects of the order outside the Incompas/USTelecom compromise. Rosenworcel said the FCC's analysis "is lacking [and] casually dismisses" concerns about competitive entry. Starks said the agency should delay further telecom overhauls until it sees how its August 2019 forbearance order (see 1908050009) plays out, and further deregulatory acts should be based on such data and analysis. Incompas CEO Chip Pickering said in a statement the compromise "while not perfect, was the result of months of negotiations designed to bring more certainty to the marketplace by providing critical transition time and rural exemptions that will help small builders continue to bring new networks to new places." He also pushed for its broadband network policy recommendations unveiled earlier this month (see 2010160040).

Unanimous approval of the order authorizing radio stations to voluntarily transition to all-digital AM was expected (see 2010230064). All-digital AM can be received only by HD radios, 70 million such devices are in the U.S., said the Media Bureau. “We expect that each station will make the decision based on its respective market,” said Media Bureau Attorney Adviser Christine Goepp. The final order appears to be largely unchanged from the draft version, and requires stations to provide 30 days' notice of such a change and abide by existing interference rules. O’Rielly praised the order for not mandating a specific technical standard, and Rosenworcel said the voluntary aspect was “a prudent approach.” The order is intended to help AM stations compete “in an increasingly digital landscape,” said Pai. Asked after the meeting whether there were more ways the FCC could help AM radio, Pai said he would have to consult with the Audio Division. “Radio broadcasters are grateful to Chairman Pai for championing AM radio during his tenure at the FCC and thank him for successfully implementing policies to help revitalize AM stations,” said NAB CEO Gordon Smith in a release.

The commissioners also unanimously approved an order to expand the number of markets in which broadcasters are required to provide video description (see 2010230052). The order adds 10 markets in January, and another 10 each year until the total number of markets reaches 100, from the currently required top 60. The order also switches FCC terminology for described video from “video description” to the industry standard “audio description.” The Twenty-First Century Communications and Video Accessibility Act “has improved the lives of many blind and visually impaired Americans by providing them access to television programming through audio description,” Pai said in a statement with the order. The item “makes more video content available to more of us,” said Rosenworcel.

The FCC approved a forfeiture order Tuesday fining Tucson telemarketer Affordable Enterprises $37.5 million for spoofing millions of calls, said an FCC release. O’Rielly dissented in part from the otherwise unanimous vote. He didn’t release a statement on the reason for the dissent, but his office told us his vote was consistent with his previous positions in caller ID enforcement actions where he objected to the FCC considering phone calls to be “harm.” He also dissented over the calculation of the forfeiture amount, “since the penalty is vastly disproportionate to the company’s ability to pay,” his office said. The company used unassigned numbers and numbers that belonged to others as the caller ID of its telemarketing calls to sell home improvement and remodeling services, the release said, making it appear the company was “calling from local phone numbers and to avoid receiving angry callbacks when making spoofed telemarketing calls.” Affordable Enterprises made more than 2.3 million illegal calls during a 14-month period beginning in 2016, the release said. “One Arizonan received more than five calls per day on her cell phone from consumers complaining about telemarketing calls they thought she had made,” the release said. Affordable Enterprises didn’t comment.

Carr said on a call with reporters he gets lots of questions about infrastructure at railroad crossings. “There’s a lot of difficulty getting approvals to go under/over railroads,” he said. It’s not clear what the FCC could do, “but I hear that a lot on the road,” he said. Cities vary on whether they’re adhering to FCC rulings, he said. “We’ve made a lot of progress. We’ve really cut a lot of unnecessary cost out of infrastructure build,” he said: “We’re not resting on our laurels. … There still are pain points.”