Next Net Neutrality NPRM Not Seen as Major Lift for New FCC

Telecom-focused lawmakers we spoke with believe Biden’s EO will influence Capitol Hill’s talk about net neutrality and other broadband issues but noted there has already been a focus on those matters.

The 2015 rules took a year to develop before approval came in February of that year (see 1502260043), classifying broadband as a Communications Act Title II service. The Ajit Pai-led FCC wasted little time undoing that classification, proposing the Restoring Internet Freedom NPRM in May 2017, less than five months after Donald Trump took office (see 1705180029). The rollback was approved in December of that year, after a bruising public battle (see 1712140039).

Those were just the latest fights on an issue that has been an FCC focus since 2004, when then-Chairman Michael Powell unveiled a set of nondiscrimination open internet principles. With a record for the item stretching back almost two decades, industry experts said restoring the 2015 rules will be a relatively light lift for the agency, with advocates having a clear idea what they want the FCC to do and a path to get there.

New Street’s Blair Levin compared net neutrality to the Fast and Furious movie series, which has also played out over 20 years. “How long did it take to prepare FF9 compared to the first Fast and Furious?” he asked: “Sure, there are some different plot points and special effects, but the characters, plot lines and fundamental parameters are all well established, making the process much faster.”

Blueprint

The current FCC already has the “blueprint of the 2015 order,” former Pai aide Nick Degani told us. The staff has likely already pulled together a draft NPRM, he said.

“There’ll be lots of conversations” about how to handle those matters, particularly as the FCC grapples with them, said Senate Commerce Committee Chair Maria Cantwell, D-Wash.: Broadband pricing matters will particularly be a “big issue” and readdressing net neutrality is central to dealing with the rising “lack of competition” in the “information age.”

Senate Communications Subcommittee Chairman Ben Ray Lujan, D-N.M., tied progress on net neutrality and Biden’s other broadband priorities directly to action to secure a 3-2 Democratic FCC majority, an issue testing fellow Democrats’ patience (see 2106160056). “I’m eager to look at this from a policy perspective,” but “also the FCC has a responsibility to be working to carry a lot these initiatives out,” Lujan said. “A full FCC allows that to happen, and I’m frustrated that we don’t have a full five-member” commission. “It’s important to me, and it’s important to my constituents” that Biden name a third FCC Democrat, so the commission can address myriad connectivity issues, he said.

Sen. Ed Markey, D-Mass., said he’s “going to synchronize” with the Biden administration on handling net neutrality, as he looks at his planned refiling of the pro-Title II Save the Internet Act (see 2103020057) in ways that can work in tandem with FCC action. “I’m very heartened” that Biden backs at least restoring the rescinded 2015 rules “and this returns us back to” how the executive branch handled net neutrality policy during the Obama administration, Markey said.

Senate Commerce ranking member Roger Wicker, R-Miss., said Democrats’ potential legislative reaction to Biden’s language on net neutrality and broadband pricing is “a concern,” but he’s doubtful their preferred solutions could make it through Congress given the party’s narrow majorities in both chambers. “I wish they would tell us what they think has been happening for the last four or five years that they’re trying to rectify,” Wicker said. “No one’s been blocked, no one’s been throttled. It just makes me wonder what they’re getting at.”

Senate Communications ranking member John Thune, R-S.D., said he’s doubtful Democrats would be able to “get everything they want” via legislation, with their tight majorities, but they might have more success if Biden successfully returns the commission 3-2. It would be easier for them to “get the protections they want” if they would reach an agreement with Republicans that jettisons Title II reclassification, he told us.

Drafting

Staff is likely drafting an NPRM “under Rosenworcel’s guidance,” said former Pai aide Nathan Leamer: “That way if she’s made permanent she can just move forward with the language once a third [Democrat] is onboard. If not, the new chair can decide how much to keep and how much to change.”

“I’d be downright surprised if a net neutrality NPRM is not already well along in draft form, if not largely finished,” said Free State Foundation President Randolph May: “While the ultimate bottom-line approach possibly may change at the margins, depending upon who is named to be the permanent chair, a significant part of the draft would remain the same regardless.” May hopes the FCC seeks comment on alternative non-Title II approaches: “But I’m not holding my breath.”

Others said the FCC can go only so far until a permanent chair is named.

Former acting FCC Chairman Michael Copps, now at Common Cause, said the staff work has probably been minimal. Copps doubts staff is “expending much effort on an NPRM, since it has so much else to say grace over right now.” Policy calls “likely await clarification of the chairmanship selection,” he said: “I do hope the [FCC] is closely monitoring the marketplace to determine what practices ISPs are engaging in that might be unfair or discriminatory. This should be an ongoing initiative anyhow.”

The process would be simple “as a matter of administrative law,” emailed Princeton University assistant professor Jonathan Mayer, but the rulemaking process itself would be a “very significant undertaking” for the FCC. ISPs or trade associations will “inevitably” challenge the order in court, Mayer said, so “the stakes for getting the rulemaking right are high.” The FCC “can't just copy and paste” its 2015 rules because net neutrality “involves a complex interplay of law, policy, and technology,” Mayer said.