President Joe Biden ended his months-long delay in filling out the makeup of the Federal Communications Commission (FCC), finally setting the agency up to tackle its most anticipated issue: restoring net neutrality rules.
Biden’s nominations of Jessica Rosenworcel for another term and as the full-time chair of the agency and Gigi Sohn as the fifth commissioner would give the commission a 3-2 Democratic majority once they are both confirmed by the Senate.
That majority—as has been pointed out numerous times over the last year—is necessary for high-profile agenda items like restoring net neutrality. The 2015 Open Internet Order enshrined net neutrality rules like prohibiting blocking, throttling, and paid prioritization of internet traffic, but it also classified internet service providers (ISPs) under Title II of the Communications Act. That classification gave the FCC authority to oversee the broadband industry.
Both of those things were repealed by the Republican-led FCC in 2017 under then-Chair Ajit Pai. Ever since Biden won the 2020 election, it was widely expected the new Democratic-led FCC would seek to undo that repeal. Biden even signed an executive order in July that encouraged the FCC to restore net neutrality rules and the Title II classification. Nonetheless, he dawdled on nominations.
But now that the FCC is poised to have the majority, when could a net neutrality restoration realistically happen?
While an exact date is hard to predict, experts told the Daily Dot that they expect 2022 to be full of net neutrality and Title II discussions. Ernesto Falcon, a senior legislative counsel at the Electronic Frontier Foundation (EFF), told the Daily Dot that he expects it to be the first major issue the Democratic-majority FCC to tackle.
“The combination of the three Democratic commissioners there makes it very clear that broadband is going to be classified as a common carrier service next year. I think no one should waste time doubting that or horse racing the question because every commissioner that is appointed and sitting have all firmly confirmed that is what they believe is the proper way of regulating access,” Falcon said. “Everything else that is relevant to broadband access stems from there.”
The timeline first hinges on the confirmations of Rosenworcel and Sohn. Biden’s delay in announcing their nominations left the Senate little time to confirm them before Republicans get a majority at the commission.
Rosenworcel, who had served as acting chair of the FCC since January, technically saw her term expire last year. However, rules allow her to stay at the commission until early January. If the confirmations don’t occur before that, the FCC would be left with the remaining members: Republicans Brendan Carr and Nathan Simington, and Geoffrey Starks, a Democrat.
To avoid that, the Senate will need to act quickly to confirm Rosenworcel and Sohn. Sen. Maria Cantwell (D-Wash.), who is the chair of the Senate committee that would hold confirmation hearings, said she expected to do so “before the end of the year.”
Assuming that happens, it makes the timeline clearer for a net neutrality and Title II restoration. Experts told the Daily Dot they expect it to be high on the priority list for the FCC.
“It has to be a priority,” Mark Stanley, the director of operations at Demand Progress, told the Daily Dot. “Ensuring affordable high-speed broadband and treating it like the essential service it is, is extremely important. At the same time, so is ensuring the FCC is actually empowered to ensure an open internet that is free from big telecom blocking, throttling, discrimination, that’s free from gatekeeping, and that everyone can access … That Title II authority is extremely important, and they go hand in hand.”
Falcon said it is possible the FCC goes even further than it did with the 2015 Open Open Internet Order and expands it to include things like data caps and zero-rating. California’s net neutrality law, which was passed in the absence of ones at the federal level, is broader than the 2015 order, as it specifically includes zero-rating.
“I think throttling and data caps and things like that are going to get top billing this time because we’ve all gone through the pandemic where we all had to use our internet connections more at home and I suspect there were lots of consumers who were facing data caps that were really not tethered to congestion or data management,” Falcon said. “So I think that will get a lot more attention this time around.”
While net neutrality is “very important,” Falcon said it really is just a component of what Title II classification could mean for the FCC and the broadband industry. He mentioned privacy rules for ISPs as a potential area the FCC could focus on with that authority.
“The reclassification can and should touch on a lot of things, and net neutrality should definitely be part of that. What those other things are less clear. That’s what the chair has to articulate as part of going forward next year,” Falcon said.
Once the FCC decides how to move forward with Title II reclassification, it would then go through a process that typically takes months before eventually having a vote. The FCC would initiate a rulemaking proceeding and go through two rounds of public comments. For example, Pai announced the notice of proposed rulemaking for repealing the 2015 Open Internet Order in May 2017, comments were collected over the summer of 2017, and the FCC voted in December 2017.
“It’s impossibly to say exactly how long it will take. If you look at the last two, they took not the entire year, but slightly more than half of the year or two-thirds of the year,” Matt Wood, the vice president of policy and general counsel at Free Press Action, told the Daily Dot. “For better or worse, if you look at the pace at which agencies move, it’s ‘we can finally move, and it will still take maybe the rest of 2022.’ If they do launch something relatively soon after everyone is seated, it’s not like we’re talking about two or three years. It’s probably more like the balance of whatever year they start in.”
Besides the FCC, it is possible there is also congressional action on net neutrality. Sen. Ed Markey (D-Mass.) has repeatedly said that he intends to introduce net neutrality-focused legislation once the FCC was filled. In the past, Markey championed the Senate version of the Save the Internet Act, a bill that would have codified the 2015 Open Internet Order.
Between the possible legislation and the FCC making Title II a priority once Rosenworcel and Sohn are confirmed, it looks like 2022 could be the year of net neutrality.
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