Within two days of President Joe Biden's inauguration, net neutrality—the simple idea that the internet should be treated as a utility, and internet service providers should have to treat all data they send fairly—was back on the national agenda. That's when Biden named Federal Communication Commission member and open internet proponent Jessica Rosenworcel as the acting FCC chair, replacing Trump's guy Aijit Pai who shut the open internet down in one of his first acts in office. Back in October 2019, a federal appeals court upheld most of Pai's net neutrality repeal, but ordered him to reconsider the impact of his order on public safety, regulations hampering proliferation of broadband hardware, and the FCC's ability to provide subsidies for broadband service. Even in the grip of the pandemic, Pai refused to act.
"This is crazy," Rosenworcel said in the face of his refusal. "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." She pointed out that the FCC ignoring the court's order would "make it easier for broadband companies to block websites, slow speeds, and dictate what we can do and where we can go online. It's insane that this is happening now, during a pandemic when we rely on internet access for so much of day-to-day life." Even more so when so much of daily life—work, school, socializing—depended on connectivity. Well, there's a new president now, and that means to rebirth of the open internet. That includes in the courts.
This week, Biden's Department of Justice dropped the previous administration's case attempting to block the state of California from implementing a net neutrality law. California's law is considered even more stringent that the federal rules that the FCC adopted during the Obama administration and could be the basis for new federal rules. The suit was filed tac in 2018 by then-Attorney General Jeff Sessions on the basis that Democratic states aren't entitled to state's rights, or something. The case was driven largely by the Big Telecom opponents, who are still suing California: "the wireless industry's lobby group, CTIA, along with USTelecom, which lobbies for the telecommunications industry [and] the two lobbying organizations for the cable industry, NCTA and the American Cable Association." They argue that the state's regulations on net neutrality are illegal because the FCC preempts them, which they still do for now. So for those challenges to be mooted, the FCC has to act.
The next FCC hearing is Feb. 23, and a coalition of open internet advocacy groups—Common Cause, the Benton Institute for Broadband & Society, the National Hispanic Media Coalition, New America’s Open Technology Institute, the United Church of Christ, OC Inc., and Free Press—has petitioned the FCC to reinstate an order protecting the open internet. They argue that the FCC's deregulation "weakened the FCC's legal authority to provide low-income households with affordable broadband through the Lifeline program at a time when the COVID-19 pandemic has made the need for connectivity greater than ever." The FCC currently has just four out of five seats filled (Pai left last month), so action is not likely to happen before a fifth member is confirmed.
Among the masses of things Biden needs to do with some urgency, filling the FCC seats is up there, critical for allowing the agency to act quickly. Advocacy groups urged Biden and Senate Democrats to prioritize a nomination last month. "We ask you to ensure that these critical efforts are not stalled in a deadlocked FCC by seating a fifth commissioner as soon as possible," the advocates wrote in the letter. "Leaving the agency in charge of charting the course for affordable communications access and infrastructure impotent to pursue the bold action required at this time would be a serious failing."
There's every hope that the FCC will reinstate a strong open internet order, but to really establish the internet being treated like the critical utility that it is, it's going to take legislation. Sen. Ed Markey is there, as he has been for years and years on this issue. He'll once again introduce the Save the Internet Act this session, but with a 50-50 Senate with the filibuster still in place, it's not likely to pass. "In order to preserve the free and open personality of the internet, we need strong enforceable net neutrality rules and clear FCC authority over broadband access," Markey told the INCOMPAS Policy Summit this week. "In the short run, whether it's by enacting my Save the Internet Act, or by action at the FCC, we need to just quickly give authority over broadband back to the commission and reinstate strong prohibitions on blocking, throttling, and paid prioritization. And we need to just reverse the wrongheaded decisions of the Trump Federal Communications Commission. That's what I'm going to be working to advance."
