The Federal Net Neutrality Debate: Access to Broadband Networks

As congressional policymakers continue to debate telecommunications reform, a major discussion point revolves around what approach should be taken to ensure unfettered access to the internet. The move to place restrictions on the owners of the networks that compose and provide access to the internet, to ensure equal access and nondiscriminatory treatment, is referred to as “net neutrality.” There is no single accepted definition of “net neutrality,” but most agree that any such definition should include the general principles that owners of the networks that compose and provide access to the internet should not control how consumers lawfully use that network, and they should not be able to discriminate against content provider access to that network. The Federal Communications Commission (FCC) in its February 26, 2015, open meeting voted along party lines (3-2), to adopt open internet rules and released these rules on March 12, 2015. One of the most controversial aspects of the rules was the decision to reclassify broadband internet access service (BIAS) as telecommunications service under Title II, thereby subjecting ISPs to a more stringent regulatory framework. With limited exceptions, the rules went into effect June 12, 2015. Various parties challenged the legality of the FCC’s 2015 Open Internet Order, but the U.S. Court of Appeals for the District of Columbia, in a June 14, 2016, ruling, voted (2-1) to uphold the legality of all aspects of the 2015 FCC Order; a petition for en banc (full court) review was denied and a subsequent petition for U.S. Supreme Court review was declined. The FCC on December 14, 2017, adopted (3-2) an Order that largely reversed the 2015 regulatory framework. The 2017 Order, among other things, reversed the 2015 classification of BIAS as a telecommunications service under Title II of the Communications Act; shifted much of the oversight from the FCC to the Federal Trade Commission and the Department of Justice; and provided for a less regulatory approach. This action again opened up the debate over what the appropriate framework should be to ensure an open internet. Reaction to the 2017 Order was mixed. Some saw the 2015 FCC rules as regulatory overreach and welcomed a more “light-touch” approach, which they felt would stimulate broadband investment, deployment, and innovation. Others supported the 2015 regulations and felt that their reversal would result in a concentration of power to the detriment of content, services, and applications providers, as well as consumers, and refute the claim that these regulations have had a negative impact on broadband investment, expansion, and innovation. The 2017 Order was published in the Federal Register on February 22, 2018, and went into effect on June 11, 2018. Federal Register publication triggered timelines for both Congressional Review Act (CRA) consideration and court challenges. The 115th Congress introduced two CRA resolutions (S.J.Res. 52, H.J.Res. 129) to to overturn the 2017 Order: the Senate passed S.J.Res. 52 (52-47), but the House did not consider H.J.Res. 129. Additional bills to provide a regulatory framework to outline FCC authority over broadband internet access services were introduced, but not acted on, in the 115th Congress. Petitions for court review were consolidated in the U.S. Court of Appeals for the District of Columbia and the court, in an October 1, 2019, decision, upheld, with some exceptions, the 2017 Order. Petitions filed with the U.S. Court of Appeals for the District of Columbia, for full court review were denied and the date for petition to the U.S. Supreme Court passed without any action taken by petitioners. Debate over what the appropriate regulatory framework should be for broadband access continued in the 116th Congress and is expected to begin again in the 117th Congress. In the 116th Congress, two bills (H.R. 1644, S. 682) would have added a new title to the Communications Act to overturn the 2017 Order and restore the 2015 Order. An amended version of the House bill was passed (232-190) on April 10, 2019, but its counterpart in the Senate was not considered.