Net Neutrality

The industry experienced déjà vu today as the FCC once again imposed Net Neutrality rules and classified broadband as a Title II telecommunications service.  The move came in a three-to-two vote, with Commissioners Brendan Carr and Nathan Simington dissenting. Also expressing concerns about the decision were numerous telecom industry groups, including four representing rural providers.

As the commission explained in a press release, the order adopted today prohibits broadband providers from blocking, throttling, or engaging paid prioritization of lawful content. It also gives the commission the ability to revoke the authorization of foreign-owned entities to operate broadband network in the U.S. if the entities pose a threat to national security. Additionally, the FCC would gain the power to monitor internet service outages.

In a statement delivered at today’s monthly FCC meeting where the Net Neutrality order was adopted, FCC Chair Jessica Rosenworcel argued that the rules are “good for consumers, good for public safety and good for national security.”

As he did back in October when the FCC put the process in motion to reinstate Net Neutrality, Commissioner Brendan Carr once again offered a rebuttal that lasted nearly half an hour.

Carr’s comments pertained, in large part, to the decision to classify broadband as a Title II service. He called Title II “the third rail of communications policy” and said the decision to classify internet access as a Title II service was “unlawful and misguided.”

The FCC has said it will forebear from imposing some of the traditional requirements of Title II that providers find most onerous, such as rate regulation or a requirement to unbundle network elements. But, according to Carr, the commission wants to forebear from so many traditional Title II requirements that it illegally overrides what legislators intended in the Telecommunications Act of 1996.

He once again argued that broadband providers have not been abusing their power in the communications marketplace, even in the absence of Net Neutrality rules. After initial Net Neutrality rules were reversed in 2017, “it was not the ISPs that abused their positions in the internet ecosystem,” he said.

Instead, he said companies such as Twitter, Google and Facebook have been guilty of that, having censored content unfavorable to themselves.

“The real abusers of gatekeeper power were not ISPs operating at the physical layer but big tech companies at the application layer,” Carr said. “Perversely, today’s order makes today’s big tech behemoths even stronger than before.”

Additionally, Carr said it is not necessary for the FCC to take the steps it is taking to ensure the nation’s security because other government organizations already have the authority to do that.

Rural Provider Associations Weigh In

Several associations representing rural broadband providers expressed concern that the new rules would create unnecessary and burdensome compliance requirements on small providers.

“Today’s order appears to reinstate a regulatory framework that focuses upon only one sliver of the broader online ecosystem and, while we need to see the precise details of the item, we are concerned that the order could impose burdens on smaller broadband providers in particular in the course of doing so,” said Shirley Bloomfield, CEO of NTCA—The Rural Broadband Association, in a prepared statement.

In a separate prepared statement, ACA Connects President and CEO Grant Spellmeyer expressed similar concerns.

“With its internet takeover, the FCC is creating mountains of uncertainty for smaller broadband providers who will be forced to shift much-needed investment dollars away from their networks to pay for expensive regulatory compliance costs,” said Spellmeyer. “This will set back our members’ ongoing work to close the connectivity gap in areas of the country that lack reliable services.”

Louis Peraertz, vice president of policy for WISPA—The Association for Broadband Without Boundaries, was particularly critical of the FCC in his prepared statement.

The order, he said, “will have costly, cascading and pernicious effects on broadband access, especially for rural ISPs and their customers. In a practical sense, ISPs will have to ask the FCC permission to do most anything to avoid agency liability, creating enormous uncertainty which will retard innovation and needed investment.”

He also noted that WISPA would “determine what legal recourse we should take in order to ensure that our members can continue to provide their local communities with reliable high-speed broadband service.”

Bloomfield, Spellmeyer and Peraertz all argued that their members would not engage in the sorts of traffic throttling that the Net Neutrality order aims to prevent.

Bloomfield and Derrick Owens, senior vice president of government and industry affairs for WTA—Advocates for Rural Broadband, also expressed concern about the FCC’s decision to forbear from including broadband revenues in the contribution base for the Universal Service Fund.

Additional information about the Net Neutrality order can be found in this FCC press release.

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