In remarks yesterday at the National Press Club, Federal Communications Commission (FCC) Chairwoman Jessica Rosenworcel announced that she will ask her fellow Commissioners to begin a rulemaking to re-assert the FCC’s authority over broadband and at the same time adopt new net neutrality rules. With Democrats now holding a majority of the FCC’s five seats, it is widely expected that the agency will formally vote to begin the process of adopting these new rules at its next monthly meeting on October 19. The Chairwoman’s announcement represents the latest phase in a longstanding public policy debate over the respective rights and responsibilities of Internet Service Providers (ISPs) that provide mobile and fixed/residential broadband to the public.
Notably, the Chairwoman in her remarks repeatedly emphasized the importance of the FCC having “Title II” authority over broadband—that is, to have the ability generally to oversee broadband using some (but not all) of the regulatory tools traditionally used in overseeing the telephone network. This focus represents a subtle, but important shift in the decades-long debate over net neutrality and the statutory classification of broadband.
In the past, policymakers embracing a Title II classification for broadband often did so on the theory that this statutory underpinning was necessary to support a set of robust net neutrality rules. Today, however, mainstream Democrats such as Chairwoman Rosenworcel support a Title II classification for broader public policy purposes that go beyond specific net neutrality rules—with the Chairwoman citing hot topics such as national security, cybersecurity, privacy, unlawful robotexts, and broadband network resiliency and outages, as well as net neutrality.
In placing Title II at the core of the debate, Chairwoman Rosenworcel implicitly rejected recent calls by major ISP trade associations that the FCC should try to adopt a set of net neutrality rules under alternative, narrower sources of statutory authority. That approach would technically restore some of the net neutrality rules that were repealed during the Trump Administration, but it would not serve as a source of authority to take steps concerning the broader public policy goals for broadband that were articulated in the Chairwoman’s remarks. Per standard agency practice, the Chairwoman’s office will release a draft of the proposed Notice of Proposed Rulemaking (NPRM) this Thursday, September 28, and at the same time, will open an electronic docket into which parties may begin expressing their views to the FCC. Should the FCC adopt the NPRM on October 19 as expected, deadlines for formal comments and reply comments would then be announced. Given the importance of broadband in our society and economy, as well as strongly-held, competing views over the pros and cons of regulation in this area, this topic is surely to be a major focus of the FCC in the coming weeks and months ahead.