On Monday, Federal Communications Commission (FCC) Chairman Ajit Pai stated that he stands by the repeal of the landmark net neutrality rules when the FCC adopted the Restoring Internet Freedom Order in 2017 and issued a proposal to address issues raised by the District of Columbia Circuit. Net neutrality is the policy that internet service providers should treat all web traffic the same, meaning it must provide access to all sites and content at the same speed without blocking, throttling, or creating “fast lanes” for certain content. In 2015, the FCC under Chairman Tom Wheeler reclassified broadband internet as a “telecommunications service,” which subjected it to more regulation; current FCC Chairman Pai reversed this decision.
The District of Columbia Circuit upheld the majority of the FCC’s decision in the Restoring Internet Freedom Order in its 2019 opinion to repeal net neutrality rules. However, the court vacated a portion of the order that prevented states from legislating their own net neutrality protections and the D.C. Circuit raised three points for the Commission’s consideration: “(1) the Order’s effect on public safety; (2) its effect on our ability to regulate pole attachments; and (3) its effect on the Lifeline program’s ability to support broadband.” The FCC previously released a Public Notice seeking comment on these issues, particularly how prioritizing internet speeds could help some organizations, although it rejected calls to extend the time to comment, which were sought as municipalities were dealing with the COVID-19 pandemic. Chairman Pai stated that he has reviewed the comments along with the laws and facts. He said that he believes the Restoring Internet Freedom Order addresses these issues, but he has put forth a proposed order for the Commission to consider in order to further address the issues raised by the Circuit. According to Pai, “(i)t affirms that the FCC stands by the Restoring Internet Freedom Order, consistent with the practical reality consumers have experiences since December 2017 of an Internet economy that is better, stronger, and freer than ever.”
Chairman Pai noted that in the Restoring Internet Freedom Order, the FCC “overturned the previous Administration’s decision to heavily regulate the Internet like a slow-moving utility under rules developed in the 1930s and restored the longstanding, bipartisan, market-based approach.” The FCC Chairman stated that at the time Americans were told that “if we don’t save net neutrality, you’ll get the internet one word at a time” or that you would have to pay for sites and searches, such as paying $2 per Google search. However, Chairman Pai stated that the FCC “ignored the falsehoods” and “replaced the prior Administration’s heavy-handed regulations with a consistent, light-touch regulatory approach that protects the free and open internet, encourages infrastructure investment, and requires strong transparency from broadband providers for consumers and innovators alike.” Consequently, Pai stated that the “Internet has remained free and open.” Furthermore, Chairman Pai claimed that millions of Americans have access to the internet today that did not have access in 2017. Pai also pointed out that in 2018 and 2019, “the United States set records for annual fiber deployment, and we’ve seen network investment hit levels that our nation hadn’t seen for over a decade” and 72,000 wireless cell sites were added compared to 20,000 in the previous four years. Additionally, Chairman Pai stated that download speeds for fixed broadband have doubled.
The Chairman also made an effort to note that during the COVID-19 pandemic, “our networks have held up extremely well.” Pai stated that the surge in Internet traffic was handled and that “average speeds have actually gone up over the past six months. Chairman Pai compared the United States’ handling to other countries that “embraced utility-style Internet regulation and, after years of subpar infrastructure investment, had to ask streaming services like Netflix and YouTube to proactively throttle consumers’ video streams from HD to SD.”
However, not all members of the FCC were pleased. Commissioner Jessica Rosenworcel stated, “This is crazy. The internet should be open and available for all. That’s what net neutrality is about. It’s why people from across this country rose up to voice their frustration and anger with the Federal Communications Commission when it decided to ignore their wishes and roll back net neutrality. Now the courts have asked us for a do-over. But instead of taking this opportunity to right what this agency got wrong, we are going to double down on our mistake.”
The FCC will vote on the proposed order to address the D.C. Circuit’s concerns on October 27 at its monthly open meeting.