FCC Chair starts process to restore Title II authority over ISPs

FCC Chairwoman Jessica Rosenworcel said the agency will begin a proceeding to restore the FCC’s authority under Title II of the Communications Act, reestablishing oversight over broadband companies and enacting nationwide net neutrality rules. In a speech at the National Press Club on Tuesday, Rosenworcel announced her plan to hold a vote on a notice of proposed rulemaking to restore the FCC’s open Internet policies during the next open meeting on October 19.

“I believe it is essential that we sustain [the Internet’s] foundation of openness. And that’s why since I have served at the FCC, I have always supported net neutrality,” said Rosenworcel. “Common sense tells us that the nation’s leading communications watchdog should have the muscle it needs to protect consumers and make sure their Internet access is fast, open and fair.”

The FCC initially voted to enact its Open Internet Order during the Obama administration, under then-FCC Chair Tom Wheeler in 2015. That order, which allowed for FCC regulation of ISPs under Title II of the Communications Act and approved net neutrality rules banning ISPs from blocking or throttling content or enacting paid “fast lanes,” was overturned during the Trump administration under FCC Chair Ajit Pai. It was replaced by the Restoring Internet Freedom Order in 2018.

According to senior FCC officials, the Commission is seeking to largely restore the Open Internet Order passed in 2015. However, the agency will propose one change that allows it to block the authorization of broadband companies potentially led by adversarial foreign governments, for national security reasons. In a fact sheet, the FCC added that the proposal “specifically proposes to forbear from 26 provisions of Title II and more than 700 Commission rules that might pose a threat to network investment or are unnecessarily burdensome. Accordingly, policies like rate regulation and network unbundling would be strictly prohibited.”

The draft proposal will be circulated amongst the FCC today and published later this week before it is introduced at the Commission’s October meeting. If adopted, that will kick off a public comment process on the notice of proposed rulemaking.

Delayed proceeding

Today’s move by Chairwoman Rosenworcel has been long awaited, given that support for net neutrality was part of President Joe Biden’s 2020 campaign platform. But it was delayed by a long drawn-out process to confirm a fifth Commissioner and third Democrat at the agency.

Indeed, the ultimately successful push against President Biden’s first choice for the fifth FCC slot, Gigi Sohn, which further delayed this proceeding for many months, was believed by some to be about the industry’s opposition to Title II reclassification.

Now, with Democrat Anna Gomez officially confirmed and sworn in to that final slot, the FCC can move on those rules. Asked at her Senate hearing in June whether she supports Title II reclassification for broadband providers, Gomez said she did.

“I would be supportive of a reclassification to Title II. However … I don’t support rate regulation because I think that competition is the most effective regulator,” she said.

At today’s press conference, Chairwoman Rosenworcel stressed the importance of classifying broadband as a Title II service.

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