Court Sets Aside FCC's New Title II Order

On January 2, the U.S. Court of Appeals for the Sixth Circuit issued a decision on the merits in MCP No. 185. The three-judge panel's decision set aside the FCC's 2024 Securing and Safeguarding the Open Internet Order. The court wrote:   

Using "the traditional tools of statutory construction," id., we hold that Broadband Internet Service Providers offer only an "information service" under 47 U.S.C. § 153(24), and therefore, the FCC lacks the statutory authority to impose its desired net-neutrality policies through the "telecommunications service" provision of the Communications Act, id. § 153(51).

The Sixth Circuit's decision in MCP No. 185 presents a straightforward reading of the Communications Act. It thus reaches a relatively easy conclusion that broadband Internet access services are best understood as fitting the definition of lightly regulated "information services" under Title I of the Act. This decision is welcome because it means that innovative broadband networks will remain free from unjustifiable public utility regulation that Congress never authorized. 

The Sixth Circuit's opinion is refreshing because it shows how the traditional tools of statutory interpretation can be used to resolve even seemingly technical questions like the regulatory classification of broadband. It's the type of decision that eluded us so long as lower courts were subject to the "Chevron doctrine" and effectively required to rationalize even far-fetched agency interpretations or re-interpretations of supposed ambiguous statutory provisions. 

The Sixth Circuit's commendable decision was made possible by the Supreme Court's overruling of the "Chevron doctrine" in its 2025 Loper Bright Enterprises v. Raimondo decision, which signaled a return to principles of judicial review based on the best reading of statutes rather than elastic deference to regulatory agencies. 

 

The August 2024 stay order issued by a different Sixth Circuit panel in an earlier stage of the litigation presented a persuasive analysis that the FCC's order is contrary to the Supreme Court's Major Questions Doctrine. However, the merits panel's decision that was issued on January 2 rightly takes a first-things-first approach by concluding the FCC's order exceeded the terms of the Communication Act. Recourse to the Major Questions Doctrine is unnecessary to reach that conclusion. 

 

P.S. In December 2023, the Free State Foundation filed public comments with the FCC opposing the agency's proposed Title II reclassification decision. And in January 2024, the Free State Foundation filed reply comments in the Commission's Securing and Safeguarding the Open Internet proceeding. Those comments and reply comments predated the Supreme Court's decision in Loper Bright. For a defense of the Loper Bright decision, see FSF President Randolph May's July 2024 Perspectives from FSF Scholars, "Chevron's Demise Re-Aligns Administrative State With Founders' Vision."

Court Hears Arguments on Challenges to FCC's New Title II Order

On October 31, the U.S. Court of Appeals for the Sixth Circuit heard oral arguments in case MCP No. 185 Open Internet Rule. The case consolidates several legal challenges against the FCC's April 2024 Securing and Safeguarding the Open Internet Order. The Commission's order turned broadband Internet access services into a public utility and subjected broadband Internet service providers (ISPs) to rate regulation.

By an August 1, 2024, order, a three-judge panel of the Sixth Circuit stayed the Commission's order pending resolution of legal merits of challenges to that order. The court's decision to stay the agency's order was discussed in an August 23 Perspectives from FSF Scholars by FSF President Randolph May, "The Sixth Circuit Stays the FCC's Latest Net Neutrality Flip-Flop." A different panel was designated to decide the legal merits.

 

Oral arguments before the three-judge merits panel lasted approximately one hour. Judge Raymond M. Kethledge pressed legal counsel on the meaning of statutory terms – such as "information services" under Title I of the Communications and "telecommunications services" under Title II. Other judges expressed greater interest in the "major questions doctrine." They pointedly asked if the "major questions doctrine" is still operative following the Supreme Court's decision in Loper-Bright v. Raimondo and whether reclassifying broadband Internet access services under Title II and subjecting it to public utility regulation and rate controls amounts to a matter of economic and political significance under the "major questions doctrine." 

 

The Free State Foundation's 2017 initial comments and reply comments in the FCC's Restoring Internet Freedom proceeding emphasized the statutory definitional case for why broadband Internet access services are Title I "information services." 

 

Moreover, FSF's 2023 initial comments and reply comments in the Safeguarding and Securing the Open Internet proceeding explained why reclassifying broadband Internet access services under Title II and thereby subjecting those services to a public utility regime with rate regulation triggers the "major questions doctrine." That is, turning broadband ISPs into public utilities and asserting control over their rates is a politically and economically significant matter. Congress nowhere provided the FCC clear authority to make such a momentous decision. 

 

The Sixth Circuit panel that issued the August 2024 stay decision in the MCP No. 185 Open Internet Rule concluded that the FCC's order likely violated the "major questions doctrine." But the Sixth Circuit's merits panel that just held oral arguments will offer its view in due time. The judges will more comprehensively answer the disputed questions about the Commission’s authority.

Joint Resolution in Senate Would Repeal FCC's New Title II Order

On July 23, Senator Marsha Blackburn introduced S.J.Res. 103, a Congressional Review Act (CRA) joint resolution of disapproval to overturn the FCC's Safeguarding and Securing the Open Internet Order. Senators Ted Cruz and John Thune are co-sponsors. S.J.Res. 103 was referred to the Senate Commerce, Science, and Transportation Committee. By a 3-2 vote in April of this year, the Commission reclassified broadband Internet access services as "telecommunications services" under Title II of the Communications Act, subjecting advanced broadband networks to public utility regulation.

Earlier this year – as described in a May 28 blog post – Rep. Bob Latta introduced in the 118th Congress H.J.Res. 153, a similar CRA joint resolution of disapproval.

 

Under the CRA, there is a fast-track process for Congress to vote on the repeal of new agency regulations. Helpful background information on the CRA, in the context of broadband regulatory policy, is contained in FSF Board of Academic Advisors Member Daniel Lyons' June 2018 Perspectives from FSF Scholars, "The Congressional Review Act and the Toxic Politics of Net Neutrality."

 

Many Perspectives from FSF Scholars papers have been published critiquing the new Title II order's imposition of public utility restrictions on broadband Internet networks. These include my May 21 Perspectives, "The FCC's New Title II Order Allows Harmful Rate Regulation" and my April 22 Perspectives, "Public Safety Rebrand Won't Save the FCC's Internet Regulation Plan From Unlawfulness." The most serious legal defect in the Commission's new Title II order comes under fire in my April 12 Perspectives, "The FCC's Internet Regulation Plan Fails the Major Questions Doctrine." 

State-Level Rate Regulation of Broadband Faces Reckoning with Title II Preemption

On June 17, the U.S. Court of Appeals for the Second Circuit issued its mandate reversing and vacating the District Court decision that enjoined enforcement of New York's Affordable Broadband Act, a state law regulating the rates of broadband Internet access services. The New York law at issue requires broadband providers offering Internet access services in the state to make available plans that are subject to rate ceilings. Apparently, as many as one-third of New York households would qualify for such rate regulated plans. The law was challenged under the FCC's 2017 Restoring Internet Freedom Order.

In a May 10 Perspectives from FSF Scholars titled "Second Circuit Preemption Decision Won’t Save New York Broadband Rate Regulation Scheme," Law Professor Daniel Lyons – a member of the Free State Foundation’s Board of Academic Advisors – analyzed Second Circuit’s decision in NYSTA v. James. Prof. Lyons critiqued the court's narrow understanding of conflict preemption, while recognizing the court's acknowledgment that the decision would be short-lived because of a change in law. Just a day before the Second Circuit’s decision, the FCC's 2024 Safeguarding and Securing Order reclassified broadband Internet access service from a Title I "information service" to a Title II "telecommunications service." Prof. Lyons explained that the Commission's decision to forbear from ex ante and ex postrate regulation in its new Title II order preempts similar rate regulation at the state level. 

By a June 14 letter to the Second Circuit the broadband providers challenging the New York Affordable Broadband Act declined to seek a rehearing en banc. They similarly declined to file a motion to reconsider the court's decision based on the change in law from Title I to Title II. In his Perspectives, Prof. Lyons wrote that if a motion to reconsider proves unavailing that broadband providers "should seek relief from the Commission and hold it to its promise that it 'will not hesitate to exercise…authority' to preempt state laws that 'interfere or are incompatible with the federal regulatory framework' established under the order."

Will there soon be a petition filed at the FCC seeking a declaratory order preempting state-level rate regulation of broadband Internet access services under Title II? Whether it's the Commission or a future court decision, one should expect that the state-level rate regulation of broadband services will face a reckoning under the new Title II order. Stay tuned. 

For further background on the case and the likely bad effects of the FCC's new Title II order, see the summary of the Second Circuit's decision in NYTSA v. James in my May 3 Perspectives from FSF Scholars, "Second Circuit Rejects Preemption Challenge to New York's Broadband Rate Regulation" as well as my May 24 Perspectives, "The FCC's New Title II Order Allows Harmful Rate Regulation." 

FCC Releases Text of New Title II Order

On May 7, the FCC released the text of its Safeguarding and Securing the Open Internet Order – that is, the agency's new Title II Order. By a 3-2 vote on April 25, the Commission reclassified broadband Internet access services as "telecommunications services" under Title II of the Communications Act. It established a public utility regulatory regime for broadband. Under that regime, broadband Internet service providers are subject to bright-line restrictions on network management and a vague "catch-all" standard. Broadband providers will be subject to informal and formal complaint proceedings for alleged violations of the Commission's rules and "catch-all" standard.

The Free State Foundation filed comments and reply comments in the FCC's Safeguarding and Securing the Open Internet proceeding that opposed public utility regulation of broadband services. In the weeks and days leading up to the Commission's April 25 vote, Perspectives from FSF Scholars papers were published on the agency's empty national security and public safety rationales for Title II regulation, the legal problems with Title II reclassification under the Supreme Court's Major Questions Doctrine, and the harm to innovative 5G "network slicing" under Title II. Additionally, an April 25 Press Release by FSF President Randolph May and I provided a brief initial response to the Commission's vote to adopt its new Title II Order. 

My Federalist Society Blog post from May 3 analyzing the Second Circuit's decision in New York State Telecommunications Association, Inc. v. James, pointed to questions still needing to be directly sorted out regarding preemption and specific state-level rate regulation of interstate broadband Internet services. Now that the text of the new Title II Order has been publicly released, expect forthcoming analyses from FSF scholars about rate regulation as well as other law and policy issues and implications of the Order. 

PRESS RELEASE: The FCC's Democrat Majority Converts Internet Providers Into Public Utilities

Regarding today's action by the FCC classifying Internet providers as public utilities, the following statement may be attributed to Free State Foundation President Randolph May and Director of Policy Studies Seth Cooper:

The FCC's vote to convert broadband Internet providers into regulated public utilities is likely the most momentous power grab by the administrative state thus far in the 21st century. Without any evidence of present consumer or competitive harm, the FCC's Democrat majority has asserted far-reaching government control over Internet providers and the Internet's physical infrastructure. Rarely, if ever, has an administrative agency attempted to seize so much power based on so little evidence. The FCC's action is based only on empty claims of speculative harms. The result almost certainly will be a chilling of investment and innovation.

Unlike most claims for the imposition of public utility regulation, the FCC in this case does not even try to justify its action based on the claims of Internet provider market power. Indeed, it couldn't if it tried, because the high-speed broadband market has become effectively competitive, with cable, fiber, fixed wireless, mobile, and satellite platforms providing consumers with choices. And the record is unequivocal that broadband providers do not block or throttle their subscribers' free speech or access to content of their choice. 

 

The Commission's novel late-blooming invocation national security and public safety as a justification for asserting government control over Internet providers is disingenuous. The order fails to identify any specific security or safety harms or adopt any new targeted security or safety rules to address them.

 

Finally, and importantly, the FCC's action almost certainly is unlawful and will fail under the Supreme Court’s Major Questions Doctrine. Congress never clearly authorized such a politically and economically significant assertion of government control over the Internet.

Report IDs Key Stats on Wireless Infrastructure, But Regulatory Threat Looms

On April 16, the Wireless Industry Association (WIA) released its report, "Wireless Infrastructure By The Numbers: 2023 Key Industry Statistics." As the title indicates, WIA's report provides a high-level look at the overall number of cell towers, macro sites, and small cell facilities that mobile service providers use to offer mobile broadband Internet access services. According to WIA's report, as of 2023, there were 153,400 cellular towers in operation in the U.S., in addition to nearly 245,000 macrocell sites and 202,100 outdoor small cells in operation. The report found that there also were nearly 776,000 indoor small cell nodes in use as of last year. These figures surely have grown since 2023.  

Moreover, WIA's report found that "[t]he U.S. cellular industry spent $11.6 billion building additional capacity and coverage into the nation’s wireless networks in 2023." Another interesting observation in the report is that "[m]ore towers and cell sites are being deployed but the amount spent building networks is flat" because "[a]s wireless network technologies mature and evolve, network equipment becomes more efficient and cost effective." Also, "[t]he amount spent on maintaining and operating the cellular networks increased but build spending dropped" due to larger networks increasing the necessary maintenance costs.

 

The deployment and operation of 4G LTE and 5G wireless networks depends on private market investment remaining strong. Subjecting mobile broadband networks to public utility regulation – as the FCC proposes in its Draft Order to be considered for a vote at the agency’s April 25 meeting – would undermine the ability of wireless infrastructure owners and operators to use their property and generate returns. This would reduce incentives to build and upgrade such infrastructure. The 2018 Restoring Internet Freedom Order found that the imposition of public utility regulation under the now-repealed 2015 Title II Order inhibited investment: 

The Commission has long recognized that regulatory burdens and uncertainty, such as those inherent in Title II, can deter investment by regulated entities and, until the Title II Order, its regulatory framework for cable, wireline, and wireless broadband Internet access services reflected that reality. This concern is well-documented in the economics literature on regulatory theory, and the record also supports the theory that the regulation imposed by Title II will negatively impact investment. The balance of the evidence in the record suggests that Title II classification has reduced ISP investment in broadband networks, as well as hampered innovation, because of regulatory uncertainty. The record also demonstrates that small ISPs, many of which serve rural consumers, have been particularly harmed by Title II. And there is no convincing evidence of increased investment in the edge that would compensate for the reduction in network investment.  

Imposing restrictions on 5G network slicing – either by outright prohibitions or by regulatory uncertainty under the vague "general conduct" standard contained in the Draft Order – also would be detrimental to wireless innovation and investment, including investment in the physical infrastructure that supports 5G uses. For more on this topic, see Free State President Randolph May's and Senior Fellow Andrew Long's April 2 Perspectives from FSF Scholars, "The 'Network Slicing' Debate Exposes How Title II Will Kill Innovation." Also, check out FSF President May's FSF Blog post from April 18: "Don't."

FCC's Misleading Rehash of 2018 Fire Incident Doesn't Justify Title II

On Monday, April 8, FCC Chairwoman Jessica Rosenworcel is set to join the Santa Clara County Fire Chief in California for a media event to discuss the Commission's proposal to transform broadband Internet networks into public utilities. According to a media advisory, Chairwoman Rosenworcel "chose to travel to the Bay Area to highlight an incident involving the Santa Clara County Fire Department where their internet access was throttled in the midst of their public safety response to the largest fire on record in California history." 

But there is a problem with Chairwoman Rosenworcel's apparent attempt to turn that bygone matter into a media flash point for public utility regulation. The July 2018 "wildfire incident" involving the Santa Clara County Fire Department was not a "net neutrality" violation.

One of the major flaws of the Biden FCC's proposed Internet regulation plan is that there is no existing problem that would justify such heavy-handed government controls. All or nearly all broadband providers in the nation pledge, in legally enforceable terms of service, to not block or throttle their subscribers' Internet access. There is a lack of real-world examples of broadband providers engaged in discriminatory blocking or throttling. The July 2018 "wildfire incident" provides no such example and its occurrence certainly doesn't justify Title II reclassification of broadband services.

 

I wrote about the July 2018 "wildfire incident" back in an August 2018 FSF Blog post, "Attempt to Turn Usage-Based Pricing into Net Neutrality Issue Is Non-Starter." To briefly recap, the Santa Clara County Central Fire Protection District signed up for a lower-tiered mass-market retail broadband Internet service plan with a monthly so-called "data cap" that resulted in slower speeds when the cap was exceeded. Near the end of July 2018, while a massive fire was blazing, the Fire District experienced exceeded its service plan's data allotment. Although the broadband service provider had a policy of making exceptions for emergencies, a customer service employee did not execute that request and the Fire District experience slowed service for some time thereafter. The broadband provider later apologized for the mistake and changed their policy to prevent that sort of result from happening again.

Although supporters of public utility regulation almost immediately made noise about the 2018 wildfire incident, there was no underlying net neutrality violation. Even if the 2015 Title II Order had remained in force in 2018, the usage-based pricing plan that the Santa Clara County Central Fire District subscribed to would have been permissible. As I explained in my August 2018 blog post: 

Usage-based pricing with data allowances was affirmed under the now-repealed 2015 Obama FCC Title II Order. According to paragraph 122: "Because our no-throttling rule addresses instances in which a broadband provider targets particular content, applications, services, or non-harmful devices, it does not address a practice of slowing down an end user's connection to the Internet based on a choice made by the end user. For instance, a broadband provider may offer a data plan in which a subscriber receives a set amount of data at one speed tier and any remaining data at a lower tier."

Buried in footnote 13 of the legal brief challenging the 2017 Restoring Internet Freedom Order, Santa Clara County and other pro-regulatory advocates admit they are not attempting to argue that Verizon's usage-based pricing plan with the fire district would have violated the 2015 Title II Order. This makes the net neutrality theater act pretty obvious.

 

After an intermission, the theater act resumed last fall. Chairwoman Rosenworcel invoked the incident in her statement accompanying the FCC's September 2023 Notice of Proposed Rulemaking to reclassify broadband Internet access services under Title II. However, the Notice didn't mention it. (The Free State Foundation filed comments and reply comments in response to that Notice, recommending against Title II regulation.)

 

Now the Commission's April 2 draft order invokes the 2018 wildfire incident in seeming support for new agency rules. But the result is underwhelming. Paragraph 452 includes a brief summation of clashing views of public comments: 

Commenters reach differing conclusions regarding the significance of the 2018 Mendocino Complex Fire. Commenters who support reclassification point to the wildfire incident as an example demonstrating the need for the open Internet rules and for the Commission to have greater authority to examine and investigate such incidents, and ultimately, to prevent future harms from occurring. Without such rules, these commenters warn, BIAS providers will engage in conduct that could result in harm to public safety, and that voluntary commitments are insufficient to ensure public safety. Commenters who oppose reclassification contend that the wildfire incident is irrelevant to, and an unpersuasive example used in support of, reclassification and the open Internet rules, because “the data plan at issue was marketed to government users, and therefore not covered by the FCC’s 2015 rules, nor by the definition of BIAS contained in the NPRM” and that Verizon’s actions would not have violated the 2015 Open Internet Order.  In other words, they state that the type of data use plan that Verizon offered and that the Santa Clara fire department purchased did not violate the 2015 Open Internet Order. Opponents also argue that the Santa Clara fire department did not purchase a data plan that was appropriate for their needs.  

The paragraph next offers the Commission’s brief take on the matter: 

In our view the 2018 Mendocino Complex Wildfire incident demonstrates that given the high stakes at issue—the loss of life and property—reliance on the free market alone is insufficient in the area of public safety. 

For all the fuss over the 2018 wildfire incident, at the end of the day the draft order never deems the incident to be a violation of net neutrality principles or the no-throttling rule. Instead, the incident is again being used in a misleading way to kick up dust in support of the proposed regulation. 

 

Public safety is a primary function of government. But responsibility for public safety belongs primarily to agencies like the Department of Homeland Security – and not to the FCC. Congress never provided any clear statement of authority for the Commission to impose public utility regulation on broadband services for public safety purposes. The draft order faces a cliff because the Supreme Court's Major Questions Doctrine requires a clear statement of authority for the agency to undertake such a politically and economically significant action as imposing public utility regulation on broadband Internet access services. The Commission's attempt to rebrand Title II regulation as a public safety matter is an empty and likely doomed attempt to get around the agency's lack of authority problem. 

 

Moreover, there is a huge mismatch between public safety and Title II regulation of commercial mass-market retail broadband Internet access services offered principally to residences and small businesses. Law enforcement agencies and emergency responders rely substantially on enterprise or dedicated networks, including FirstNet. The Title II legacy telephone regulatory framework was designed for rate-regulating common carrier services, and it has almost nothing to do with public safety. There is no reason to think that Title II reclassification of broadband will improve public safety outcomes. 

FSF Scholars Warn Against the Title II Threat to Innovative 5G Network Slicing

On April 2, the Free State Foundation released a Perspectives from FSF Scholars by President Randolph May and Senior Fellow Andrew Long titled "The 'Network Slicing' Debate Exposes How Title II Will Kill Innovation." Their Perspectives paper provides a helpful descriptive overview of 5G mobile network slicing and how it can provide optimal service for different use cases, including broadband Internet access services, telemedicine, Internet-of-Things, and more. But as FSF President May and Mr. Long explain, the Commission's proposal to reclassify broadband Internet access services as a Title II "telecommunications service” under the Communications Act threatens to impede these breakthrough uses of next-generation broadband networks. Their paper concludes: "To encourage continued investment and innovation, the Commission should shelve its entire proposal to impose a public utility straitjacket on Internet providers and let technological advancements and marketplace competition do the job of enhancing consumer welfare."

FSF President May and Mr. Long's Perspectives paper is worthwhile reading on network slicing and the harm to innovation posed by Title II regulation. Also, an April 5 FedSoc Blog post by former NTIA Administrator John Kneuer, titled "Network Slicing and Net Neutrality" elaborates on these same matters and cites favorably to that paper. 

Smaller Networks Marshall the Evidence for Broadband Market's Competitiveness

A report by ACA Connects – included in a February 22 ex parte filing with the FCC – provides a window into the competitiveness of the broadband market from the vantage point of medium and smaller providers. Members of ACA Connects collectively serve nearly 32 million households – or about 25% of all U.S. households – including 7.3 million households in rural communities – or about 29%.

Insightful data points about communities served by ACA members include the following:

• "Members reached 31% more households via FTTH over the last year, a rate far higher than their overall increase in coverage."
• "96% of households have two or more fixed broadband options—and 85% have three or more options."
• "Over a third of all households (37%) in areas served by ACA Connects Members have access to gigabit broadband service."
• "The ACA Connects Members increased gigabit service availability in [] rural communities from 24% in 2022 to 33% in 2023." 

The ACA Connects report also includes figures about trends in the wider broadband market. This includes a breakdown of the share of U.S. households with competitive presence by technological capabilities of 100/20+ Mbps. According to FCC and Cartesian data for 2022-2023, almost 95% of households are in census blocks where there is an actual or potential presence of a cable, fiber, or licensed fixed wireless access (FWA) broadband provider offering speeds of 100/20+ Mbps. For 89.1% of households, a cable provider offering those speeds has a competitive presence, for 49.7% a fiber provider has a competitive presence, and for 39.6% a licensed FWA has a competitive presence. While those figures are higher than actual access figures for households, there are strong pro-deployment and pro-competitive trends. Back in 2017, only 69% of households had access to a provider offering 100/20+ Mbps, with a cable/fiber/licensed FWA competitive presence breakdown in 2017 of 59.3%/19.4%/1.7%.

 

The ACA Connects report was filed with an ex parte regarding the FCC's proposal to reclassify broadband Internet services as Title II telecommunications services and subject them to public utility regulation, including conduct-based restrictions that could eliminate consumer choice for reduced pricing options such as usage-based billing or free-data mobile offerings.

 

In December 2023, the Free State Foundation filed comments opposing the FCC's Title II reclassification proposal. And in January of this year, FSF filed reply comments. If the Commission adopts its proposal, the harm to private market investments and the ability to generate returns on future investments would come to all broadband providers, with small and medium providers almost certainly being hit the hardest. 

FirstNet's Public Safety Communications Network Continues to Grow

On January 24, AT&T released its report for the fourth quarter of 2023. AT&T announced that the FirstNet nationwide public safety broadband network it constructed has increased its total connections to more than 5.5 million across 27,500 law enforcement and first responder agencies. FirstNet is overseen by FirstNet Authority, an agency within the NTIA.

The widespread adoption by law enforcement and first responder agencies of FirstNet and other enterprise networks is significant because it undermines the FCC's attempted partial rebranding of public utility regulation of residential mass-market retail broadband Internet access services as a vital public safety measure. The Commission's Notice proposing to reclassify broadband Internet access services as a public utility under Title II of the Communications Act even acknowledges that "much of the communications between public safety entities and first responders take advantage of enterprise-level dedicated public safety broadband services." Indeed, enterprise-level dedicated networks with quality-of-service guarantees are more ideally suited for government agencies such as emergency first responders. 

 

On December 14, 2023, the Free State Foundation filed public comments opposing Title II reclassification and imposition of public utility regulation on broadband Internet access services. FSF's comments called attention to the glaring disconnect between imposing public utility regulation on commercial broadband Internet access services in the name of national security and public safety when the military, law enforcement, and emergency responders rely heavily on dedicated networks. 

 

Also, in the Free State Foundation's reply comments, filed on January 17, 2024, we observed that "it is a weighty matter to impose government controls over private services and property catering to civilians in the name of national security and public safety." And thus, "[i]t is unlikely that Congress intended to alter the balance between public power and private rights through such an expansive reading of Title II." Our reply comments voiced agreement with the proposition that national security and public safety have never before been relied upon by the Commission as a justification for common carrier regulation of broadband.

 

For more on the empty national security and public safety rationale for regulating residential commercial broadband Internet services as public utilities, see FSF’s comments and reply comments. See also my October 2023 Perspectives from FSF Scholars, "Net Neutrality Regulation Is Not a Public Safety Measure."

FSF Submits Reply Comments on the Safeguarding and Securing the Open

 

Today, Free State Foundation President Randolph May and Director of Communications Policy Studies Seth Cooper filed reply comments showing why the FCC’s proposal to convert Internet service providers into public utilities is unwise and unlawful.

Here are a few key excerpts from the Introduction and Summary:

 

"It's well-documented that proponents of public utility regulation of broadband Internet services decried the RIF Order’s repeal of that regulation as the unleashing of a dystopian nightmare in which the Internet would grind to a halt and broadband providers would prey on consumers, innovators, and small businesses. Of course, their deliberately outlandish claims were quickly proven wrong. For this reason alone, the views of these pro-utility regulation advocates should be given no credence whatsoever. Indeed, were they to be given credence, the Commission’s own credibility would be further called into question.”

"Despite being so spectacularly wrong about the effect of the RIF Order, many of those same pro-regulatory proponents are back, calling for the reimposition of the short-lived public utility regime established in the now-repealed 2015 Title II Order. The FCC cannot accord the claims of these parties – or the claims of allied parties – any credibility whatsoever regarding the future of broadband services when they were so wrong last time around. If it does so, it will confirm that the Commission is intent on regulation as an end in itself, not a means to an end when warranted. Since the RIF Order was adopted in late 2017, Internet speeds have significantly increased. Next-generation technologies such as fiber, 5G mobile wireless, and fixed wireless access have deployed and offer significantly improved capabilities as well as more competitive choices for consumers. And broadband service pricing has been more consumer friendly and resistant to price increases than most other service markets.”

"Title II reclassification will not protect Internet openness, national security, or public safety. To the limited extent that pro-utility regulation comments actually try to prop up the Commission’s dubious national security, public safety, cybersecurity, and network resiliency rationales for Title II reclassification, such comments offer no analysis or facts, or concrete dangers or solutions, to substantiate those claims. There is no reason to expect government interference, based on supposed bureaucratic expertise, will make networks perform better or more safely. Comments opposed to the proposed rulemaking rightly point out that broadband Internet service providers (ISPs) already have economic incentives to make available high-performance, resilient networks. Indeed, ISPs demonstrated their performance capabilities under the stress of traffic demand spikes amidst COVID-related government-imposed lockdown orders.”

"It is no surprise that comments by many longtime supporters of public utility regulation of broadband do not cite any specific credible examples of ISPs blocking or throttling their subscribers’ access to legal content of their choice. Instead of the predicted broadband Internet wasteland following Title II regulation repeal, since early 2018 there is no record evidence that ISPs engage in such harmful conduct or that they are likely to do so. The fact that ISPs do not block or throttle indicates that the existing light-touch policy based on the Commission’s transparency rules and Federal Trade Commission enforcement of ISP terms of service pledges is working. ISPs’ consensus against blocking or throttling cannot be explained away by pointing to state net neutrality laws. Net neutrality laws exist only in a handful of states, and yet blocking and throttling have not occurred in states that have no net neutrality laws.”

"We agree with comments opposed to the proposed rulemaking that the Commission’s pretensions to secure or safeguard Internet openness, national security, and public safety are illusory and arbitrary because the rulemaking focuses on only one aspect of the Internet – Internet access services – and does not address far more serious concerns posed by other aspects of the Internet – including Big Tech platforms and other online edge providers that actively censor, shadow ban, and deprioritize speech content. Also, the Commission’s myopic focus on ISPs for supposed security and safety purposes leaves completely untouched numerous other major providers in the Internet ecosystem that may pose much greater risks to security and safety than ISPs.”

A PDF of the complete FSF reply comments, with footnotes, is here.