The proposal is expected to have sufficient support from Commissioners to progress, but the Supreme Court could be its downfall
Proposal would return regulation to 2015
On 26 September 2023, FCC Chairwoman Jessica Rosenworcel shared with colleagues a proposal to re-establish the regulator’s authority over the telecoms industry and to restore uniform, nationwide net neutrality rules in the US. In 2018, the FCC “abdicated” this authority and repealed net neutrality rules, thereby moving away from a policy to enforce open internet principles that had stood since 2005 and revoking specific net neutrality regulations adopted in 2015. According to Rosenworcel, one of the consequences is that no federal agency can effectively monitor or help with broadband outages, which threaten jobs, health, education and safety. Her Notice of Proposed Rulemaking (NPRM) would affirm – under Title II of the Communications Act – that fixed and mobile broadband are essential services on a par with water, energy and telephony.
How the draft rules would support US consumers
The Chairwoman has identified four areas where the proposed rules would help consumers:
Openness: Establish basic rules for operators that prevent them from blocking legal content, throttling speeds and creating fast lanes that favour those who can pay for access;
Security: Reclassify broadband access to give the FCC and its national security partners the tools needed to defend telecoms networks from potential security threats;
Safety: Allow the FCC to enhance the resiliency of broadband networks and bolster efforts to require providers to notify the regulator and consumers of internet outages; and
Nationwide standard: Establish uniform, US-wide rules rather than a patchwork of state-by-state approaches, benefiting both consumers and operators.
Push back from some FCC Commissioners
If the NPRM is adopted by an FCC vote on 19 October, the regulator will begin a new rulemaking and seek public comment on Rosenworcel’s proposal. Once feedback is reviewed, the Chairwoman can decide whether and how to proceed, including adopting final rules, which would require a majority vote by FCC commissioners. Commissioner Brendan Carr quickly signalled his opposition to “increasing government power over the internet”, while Commissioner Nathan Simington has suggested efforts should be focused on regulating big tech instead of reinstating net neutrality rules. With three Democrat Commissioners in place (following the protracted approval of Anna Gomez), the NPRM will likely have the votes it needs to progress. However, it could ultimately be struck down by the Supreme Court, which this year established a new regime – the ‘major questions doctrine’ – that could limit the regulatory powers of agencies such as the FCC.
