FCC Adopts Proposed Net Neutrality Rule

FCC Adopts Proposed Net Neutrality Rule

October 19, 2023
FCC Adopts Proposed Net Neutrality Rule
On October 19, 2023, the Federal Communications
Circuit has also held that the FCC may enact net neutrality
Commission (FCC) adopted a Notice of Proposed
rules only if it has classified BIAS as a telecommunications
Rulemaking (NPRM) that proposes to reclassify broadband
service. Currently, per the FCC’s 2017 order, BIAS is
internet access service (BIAS) as a Title II common carrier
classified as an information service.
service and reinstate net neutrality rules.
The NPRM
The NPRM is the FCC’s latest action on a subject with a
The NPRM proposes to again reclassify BIAS as a
lengthy regulatory and legal history. This In Focus provides
telecommunications service and to reinstate the 2015 net
an overview of net neutrality regulation, a brief discussion
neutrality rules, including the general conduct standard. As
of how the FCC’s classification of broadband affects that
in 2015, the NPRM proposes to forbear from applying
regulation, a summary of the NPRM, and a discussion of
many Title II requirements to BIAS providers. It also
potential legal challenges and policy considerations.
emphasizes that the FCC would not use Title II to
Net Neutrality Regulation
prospectively set the rates BIAS providers can charge.
Net neutrality generally refers to the idea that internet
The NPRM further asserts that Title II reclassification
service providers should neither control how consumers
would allow the FCC to further goals other than net
lawfully use their networks nor discriminate among the
neutrality, including national security, public safety,
content providers that use their networks. The FCC has
network resiliency, and privacy.
sought to implement net neutrality rules several times, most
National Security. The NPRM explains that
recently in 2015. In its 2015 net neutrality order, the FCC
reclassification would enhance the FCC’s ability to respond
laid out what it called “clear, bright-line rules” that BIAS
to national security threats by subjecting BIAS providers to
providers were required to follow. Specifically, they were
authorization requirements under Section 214 of the act.
prohibited from: (1) “blocking” lawful content,
The FCC has used this authority to ban several China-
applications, services, or non-harmful devices; (2)
affiliated Title II carriers from operating in the United
“throttling” (i.e., impairing or slowing) lawful internet
States for national security reasons. The NPRM indicates
traffic on the basis of content, applications, services, or use
that the FCC could take similar action with BIAS providers
of non-harmful devices; and (3) engaging in “paid
deemed to pose a threat to national security.
prioritization,” which is defined as favoring some internet
Public Safety. The NPRM states that the FCC could use
traffic over others in exchange for consideration. The FCC
the reclassification in combination with other statutory
also imposed a broad catch-all rule referred to as the
authority to ensure BIAS meets the needs of public safety
“general conduct standard.” That standard prohibited BIAS
entities and individuals when they use those services for
providers from unreasonably interfering with or
public safety purposes. For example, the agency believes
disadvantaging users and edge providers (i.e., persons or
the proposed reclassification would enable the FCC to
companies providing content and services to a BIAS
support public safety officials’ use of BIAS for public
provider’s subscribers) in accessing or providing the lawful
safety purposes; ensure BIAS is available to the public to
content, applications, services, or devices of their choice.
communicate with first responders during emergency
The FCC repealed most of its net neutrality rules, however,
situations; allow the public to access public safety resources
in an order adopted at the end of 2017.
and information; and provide consumers with the
Net Neutrality and Broadband
connections they need to operate home safety and security
Classification
systems (such as cameras and window sensors).
The FCC’s ability to adopt net neutrality rules depends on
Network Resiliency. The NPRM tentatively concludes that
the legal classification of BIAS under the Communications
reclassifying BIAS as a telecommunications service would
Act of 1934 (“the Act”). As amended, the act defines two
enhance the FCC’s ability to ensure the nation’s
mutually exclusive categories of services:
communications networks are resilient and reliable. In
telecommunications services and information services.
particular, the reclassification may allow the FCC to require
While telecommunications service providers are treated as
that BIAS providers report network outages to the Network
highly regulated common carriers under Title II of the act,
Outage Reporting System (NORS). The NPRM explains
the FCC has much more limited regulatory authority over
that such reporting requirements could inform the FCC’s
information service providers.
network resiliency efforts and give officials greater
The FCC has alternated between classifying BIAS as a
transparency during outages.
telecommunications service and an information service.
Privacy. The NPRM tentatively concludes that
The U.S. Supreme Court and U.S. Court of Appeals for the
reclassification of BIAS as a telecommunications service
D.C. Circuit have affirmed the FCC’s discretion to make—
would support the FCC’s goal to safeguard consumers’
and to change—this classification decision. The D.C.
privacy and data security. As discussed further in a CRS
https://crsreports.congress.gov

FCC Adopts Proposed Net Neutrality Rule
report (R45631), Title II carriers are subject to data privacy
mandating or prohibiting net neutrality. No related
requirements under Section 222 of the act. The NPRM
legislation has been introduced in the 118th Congress.
explains that applying Section 222 to BIAS providers could
Despite having left net neutrality regulation to the FCC in
“support a uniform privacy and data security framework for
the past, there are indications that Congress may pursue a
voice and data services.” The NPRM also seeks comment
more active approach. Since the beginning of Coronavirus
on whether Title II classification would allow the FCC to
Disease 2019, Congress has sought to increase broadband
require BIAS providers to block illegal robocalls and
connectivity for telework, remote learning, and telehealth,
robotexts transmitted over broadband networks.
including bridging the “digital divide,” by appropriating
Opposing Views
billions of dollars for broadband infrastructure deployment
The Commission adopted the NPRM by a 3-2 vote. In a
throughout the United States. In the Infrastructure
statement, one of the dissenting commissioners indicated
Investment and Jobs Act alone, Congress appropriated
his belief that net neutrality rules would “prevent last-mile
$62.4 billion for six new programs. With those funds now
ISPs [internet service providers] from being able to charge
being distributed, some Members have expressed concern
large originators of traffic, like streaming platforms, transit
that oversight of these programs could prove difficult. In
fees” and leave open the “ever-present possibility of rate
the NPRM, the FCC stated that regulating BIAS providers
regulation stifling investment and innovation.”
under Title II would allow that funding to go as far as
possible and enable the agency to ensure the connections
Potential Legal Challenges
supported by these funds align with the other policy goals
The FCC must complete the rulemaking process before any
(e.g., advancing national security, ensuring public safety,
rules could be challenged in court. One argument in a legal
and protecting consumers).
challenge might be that the FCC’s reclassification of BIAS
exceeded the Commission’s statutory authority.
In a May 2023 hearing, the Chair of the House Committee
This
on Energy and Commerce expressed concern that funds for
argument has been consistently rejected in the past. In
some of the new programs may overlap with previously
NCTA v. Brand X Internet Services (2005), the Supreme
existing programs. A 2023 Government Accountability
Court applied the Chevron doctrine—under which courts
generally defer to an agency’s reasonable interpretation of
Office report, presented at the hearing, identified federal
broadband efforts as “fragmented and overlapping, with
an ambiguous statutory provision—to uphold the FCC’s
more than 133 funding programs administered by 15
reclassification of BIAS. Lower courts followed suit,
agencies.” Congress might examine the FCC’s assertions
applying the Chevron doctrine to uphold all subsequent
concerning net neutrality providing improved opportunities
FCC reclassifications. The future of Chevron may be in
for oversight.
doubt, however. As discussed in a CRS report (R44954),
several Supreme Court Justices have criticized the doctrine,
In considering possible legislation, Congress may weigh
and the Court will be considering whether Chevron should
whether to preempt state net neutrality laws. After the FCC
be curtailed or overruled in its current term.
repealed its 2015 net neutrality rules, states began adopting
The Court’s increasing emphasis on the
their own requirements. California and Washington enacted
major questions
net neutrality laws that apply to all BIAS providers
doctrine has also raised questions about judicial deference
operating in their states. States including Colorado, Maine,
to agencies. Under the major questions doctrine, the Court
Vermont, and Oregon have enacted laws requiring BIAS
has rejected claims of regulatory authority involving issues
of “
providers contracting with the state to comply with net
vast economic and political significance” when there is
neutrality requirements. Most of these laws mirror the
no clear statutory language establishing that authority.
FCC’s 2015 net neutrality rules. California’s law goes
Consequently, even if the Court declines to overrule
further by regulating the practice of “zero-rating” (the
Chevron, any future net neutrality rules may be met with
practice of not counting the usage of a particular application
major questions doctrine challenges. Such challenges might
or class of applications toward a data cap). Should Congress
assert that the FCC needs express statutory authorization in
adopt a federal net neutrality law, it could choose to
order to adopt net neutrality rules.
preempt such state laws or leave them intact to the extent
Policy Considerations
they are consistent with the federal law.
Establishing the appropriate regulatory framework for
Additional CRS Products
BIAS has become a perennial debate. As the FCC conducts
CRS Report R45825, Federal Preemption: A Legal Primer,
its business both now and into the future, the regulatory
by Bryan L. Adkins, Alexander H. Pepper, and Jay B.
philosophies of the current and future FCC chairpersons
Sykes
may affect how they decide regulatory questions, including
a continued review of net neutrality. The Supreme Court
CRS Infographic IG10037, FCC Regulation of Broadband
has said not only that an administrative agency can change
Service and Action on Net Neutrality, by Chris D.
its interpretation of an ambiguous statute, but that it “must
Linebaugh
consider varying interpretations and the wisdom of its
CRS Report R40616, The Federal Net Neutrality Debate:
policy on a continuing basis, for example in response to
Access to Broadband Networks, by Patricia Moloney
changed factual circumstances or a change in
Figliola
administrations.” Some observers have suggested that
CRS Report R46973, Net Neutrality Law: An Overview, by
Congress could settle the debate through legislation, with or
Chris D. Linebaugh
without classifying BIAS as a Title II service. To date,
however, Congress has not passed legislation either
Chris D. Linebaugh, Legislative Attorney
https://crsreports.congress.gov

FCC Adopts Proposed Net Neutrality Rule

IF12513
Patricia Moloney Figliola, Specialist in Internet and
Telecommunications Policy

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