Hunter Law is a first-year student at the American University Washington College of Law. He graduated from Hillsdale College with a bachelor’s degree in politics. He is interested in studying administrative law.

On July 9, 2021, President Joe Biden signed Executive Order 14,036, Promoting Competition in the American Economy, to make the market more competitive by enforcing antitrust laws and further regulating the market.[1] Among these efforts, President Biden ordered the Federal Communications Commission (FCC) to consider restoring net neutrality rules.[2] In compliance with this order, FCC Chairwoman Jessica Rosenworcel announced a plan to make rules restoring net neutrality regulations on September 26, 2023.[3] On October 19, 2023, the FCC voted 3-2 to adopt a notice of proposed rulemaking.[4]

Net neutrality is the idea that the government ought to classify broadband internet access service as a telecommunications service rather than an information service under the Communications Act of 1934, as amended by the Telecommunications Act of 1996.[5] This reclassification would allow the FCC to regulate internet service providers (ISPs) as common carriers under Title II of the Communications Act of 1934 according to the statute’s definition of telecommunications carriers.[6] However, the current notice of proposed rulemaking would not be the first rule the FCC has made regarding net neutrality.[7] In 2015, the FCC promulgated the rule Protecting and Promoting the Open Internet, the first successful attempt at net neutrality regulation.[8] One of the primary purposes of this rule was to ban the practices of blocking, throttling, and paid prioritization.[9] Most people’s knowledge of net neutrality rests in these three policies, but net neutrality reaches beyond that. The current notice of proposed rulemaking also cites protecting the national defense,[10] enhancing cybersecurity,[11] advancing public safety,[12] cracking down on robocalls,[13] and establishing a consistent nationwide regulatory framework as reasons for pursuing net neutrality.[14]

However, just as there are many in favor of net neutrality, there are also many critics of the policy. In his dissent of the 2015 rules, then-Commissioner Ajit Pai stated his belief that there was no problem with how ISPs were behaving or with the FCC’s previous regulatory framework.[15] Three years later, the FCC led by Chairman Pai adopted the Restoring Internet Freedom rule, returning the classification of broadband internet access service to an information service, undoing net neutrality.[16] In his dissent of the current notice of proposed rulemaking, Commissioner Brendan Carr noted not only that the people’s fears about the end of net neutrality proved to be wrong,[17] but also that since the FCC ended net neutrality in 2018, internet speeds have risen, prices have decreased, and competition has increased.[18] Furthermore, Commissioner Nathan Simington notes in his dissent how American internet speeds have surpassed internet speeds of European countries with net neutrality laws since the FCC ended net neutrality.[19]

Regardless of the opposition, the proposed rule is likely to pass once the notice and comment period is over.[20] The FCC voted 3-2 to adopt the notice of proposed rulemaking along party lines,[21] and it is likely the result will not change. However, it is dubious whether it will survive litigation or what effect it will have if it does. While both of the previous net neutrality rules survived litigation,[22] much has changed in the world of administrative law since 2019. Two Obama Administration Solicitors General believe that the reclassification of broadband internet access service as a telecommunications service is a major question that Congress has not sufficiently authorized the FCC to answer.[23] Not only that, but the decisions upholding the previous net neutrality rules both relied on Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984),[24] which might get overturned in the upcoming case Loper Bright Enterprises v. Raimondo.[25] Finally, even if this proposed rule does survive, it is possible that it will not succeed in establishing a consistent nationwide regulatory framework as reasons for pursuing net neutrality.[26] In Mozilla, while the court refused to vacate the Restoring Internet Freedom rule entirely,[27] it still vacated its preemption of inconsistent state and local laws.[28] Therefore, while there is precedent that might protect the FCC’s proposed net neutrality rule, that precedent is shakier than ever, and it does not protect the entire proposed rule.

The best way to pass a net neutrality policy would be through Congress.[29] It would avoid possible judicial challenges which would only be likely to strike it down.[30] Congress could still choose whether to legislate all the details, formally to categorize broadband internet access service as a telecommunications service, or to give the FCC the authority to categorize it at will. All of these would meet the standard of the major questions doctrine.[31] It would be a slower and less guaranteed process, but success likely means permanent success since it would take more than a single President to change for the policy to change.

 

[1] Exec. Order No. 14,036, 3 C.F.R. 609, 610 (2021), reprinted as amended in 15 U.S.C. § 1 at 8 (2022).

[2] Id. at 618.

[3] Fed. Commc’ns Comm’n, Chairwoman Rosenworcel Proposes to Restore Net Neutrality Rules (Sept. 26, 2023), https://docs.fcc.gov/public/attachments/DOC-397235A1.pdf.

[4] October 2023 Open Commission Meeting, Fed. Commc’ns Comm’n (Oct. 19, 2023, 10:30 A.M.), https://www.fcc.gov/news-events/events/2023/10/october-2023-open-commission-meeting; Safeguarding and Securing the Open Internet, 88 Fed. Reg. 76,048 (proposed Nov. 3, 2023) (to be codified at 47 C.F.R. pts. 8, 20).

[5] See Safeguarding and Securing the Open Internet, 88 Fed. Reg. 76,048.

[6] Compare Communications Act of 1934, 47 U.S.C. § 151 et seq., § 153(51) (“A telecommunications carrier shall be treated as a common carrier under this chapter only to the extent that it is engaged in providing telecommunications services”) with id. at § 153(24) (“The term “information service” means the offering of a capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications, and includes electronic publishing, but does not include any use of any such capability for the management, control, or operation of a telecommunications system or the management of a telecommunications service”).

[7] See Protecting and Promoting the Open Internet, 30 FCC Rcd. 5,601 (2015); Restoring Internet Freedom, 33 FCC Rcd. 311 (2018).

[8] See Protecting and Promoting the Open Internet, 30 FCC Rcd. 5,601.

[9] See id. at 5,607-08.

[10] Safeguarding and Securing the Open Internet, 88 Fed. Reg. at 76,050-51.

[11] Id. at 76,052.

[12] Id.

[13] Id. at 76,055.

[14] Id. at 76,050.

[15] Protecting and Promoting the Open Internet, 30 FCC Rcd. 5,601, 5,921 (2015).

[16] Restoring Internet Freedom, 33 FCC Rcd. 311, 312 (2018).

[17] Fed. Commc’ns Comm’n, Dissenting Statement of Commissioner Brendan Carr 1-4 (Oct. 19, 2023), https://docs.fcc.gov/public/attachments/FCC-23-83A3.pdf.

[18] Id. at 4-5.

[19] Fed. Commc’ns Comm’n, Dissenting Statement of Commissioner Nathan Simington 1 (Oct. 19, 2023), https://docs.fcc.gov/public/attachments/FCC-23-83A5.pdf.

[20] October 2023 Open Commission Meeting, supra note 4.

[21] Id.

[22] Mozilla Corp. v. Fed. Commc’ns Comm’n, 940 F.3d 1, 35 (D.C. Cir. 2019) (refusing to vacate the FCC’s classification of broadband internet access service as an information service); U.S. Telecom Ass’n v. Fed. Commc’ns Comm’n, 740 F.3d 623, 700 (D.C. Cir. 2016) (upholding the FCC’s classification of broadband internet access service as a telecommunications service).

[23] Donald B. Verrilli, Jr. & Ian Heath Gershengorn, Title II “Net Neutrality” Broadband Rules Would Breach Major Questions Doctrine 10, BL (Sept. 20, 2023), https://aboutblaw.com/bazq.

[24] Mozilla Corp., 940 F.3d at 19; U.S. Telecom Ass’n, 740 F.3d at 701.

[25] Loper Bright Enterprises v. Raimondo, 45 F.4th 359 (D.C. Cir. 2022), cert. granted, 216 L. Ed. 2d 414 (U.S. May 1, 2023) (No. 22-451).

[26] Safeguarding and Securing the Open Internet, 88 Fed. Reg. 76,048, 76,050 (proposed Nov. 3, 2023) (to be codified at 47 C.F.R. pts. 8, 20).

[27] Mozilla Corp., 940 F.3d at 86.

[28] Id. at 74.

[29] See Donald B. Verrilli, Jr. & Ian Heath Gershengorn, Title II “Net Neutrality” Broadband Rules Would Breach Major Questions Doctrine 16-17, BL (Sept. 20, 2023), https://aboutblaw.com/bazq.

[30] See id. at 1.

[31] West Virginia v. Env’t Prot. Agency, 142 S. Ct. 2587, 2609 (2022) (quoting U.S. Telecomm. Ass’n. v. Fed. Commc’ns Comm’n, 855 F.3d 381, 419 (D.C. Cir. 2017) (Kavanaugh, J., dissenting from denial of rehearing en banc)) (“We presume that ‘Congress intends to make major policy decisions itself, not leave those decisions to agencies’”).