Democrats on Capitol Hill on Thursday introduced legislation that could restore net neutrality and the authority of the Federal Communications Commission to regulate broadband.
With President Joe Biden's pick to be the fifth commissioner at the FCC stalled, two Senate Democrats introduced the Net Neutrality and Broadband Justice Act, which would codify Obama-era net neutrality rules repealed under President Donald Trump's administration. The renewed effort to pass a federal net neutrality law is being led in the Senate by Sens. Edward J. Markey from Massachusetts and Ron Wyden from Oregon, according to a press release put out by Markey's office Thursday. Rep. Doris Matsui, a Democrat from California, is introducing companion legislation in the House.
The legislation would reestablish the FCC's authority over broadband infrastructure by reclassifying internet service as a telecommunications service, Markey's release says. This would mean stricter oversight for broadband companies like AT&T, Comcast and Verizon, The Washington Post reports.
"I strongly believe that net neutrality principles should form the foundation of an open internet," Matsui said in an emailed statement to CNET. "These protections will help defend free expression and innovation -- protecting consumers and securing a more equitable online ecosystem."
The bill is the latest maneuver in a decades-long battle over net neutrality and broadband regulation. At stake in this battle is who, if anyone, will police the internet to ensure that broadband companies aren't abusing their power as gatekeepers. The Democrats' legislation would firmly establish the FCC's oversight over broadband, giving the agency the authority to police broadband abuses, such as weak privacy practices or fraudulent billing. In addition, the law would give the agency more authority to promote competition and would put the FCC on firm legal footing to modernize the Universal Service Fund programs, which help provide subsidies to poor Americans for phone service and broadband and which also provide E-rate funding to schools and libraries to offer broadband service.
Net neutrality: A quick history lesson
Net neutrality is the principle that all traffic on the internet should be treated equally, regardless of whether you're checking Facebook, posting pictures to Instagram or streaming movies from Netflix or Prime Video. Supporters of net neutrality say rules are necessary to ensure broadband companies aren't taking advantage of their power over the infrastructure that delivers content to your internet-enabled TVs, laptops, tablets and smartphones. But broadband companies and Republicans in Congress and on the FCC say the old rules gave the agency too much power, stifling broadband investment.
The result for the past decade has been a ping-ponging of federal net neutrality regulations based on the political party in charge.
In 2015, the FCC with a Democratic majority adopted regulation under Title II of the Communications Act of 1934. In addition to preventing companies from blocking or slowing access to the internet, it also imposed utility-style regulation for broadband. In 2017, a Republican-led FCC repealed the rules under Chairman Ajit Pai, who argued against the "heavy-handed" regulations.
Since then, Democrats on Capitol Hill have repeatedly tried to revive federal net neutrality protections. This included last-ditch efforts to reverse the net neutrality repeal by the FCC. But Republicans have opposed these efforts.
The latest battle
The back-and-forth on regulation was expected to continue with the nomination of Biden's pick to fill the fifth seat on the FCC, Gigi Sohn. A long-time net neutrality supporter and activist who advised former FCC Chair Tom Wheeler, who adopted the 2015 rules, Sohn was expected to give the Democrats the FCC majority that would lead to a new set of net neutrality regulations.
But for more than 500 days, the FCC has operated with a 2-2 split between Democrats and Republicans as Sohn's nomination has languished awaiting a Senate confirmation vote. With time running out before Democrats potentially lose the Senate in the midterm elections, Democratic lawmakers on Capitol Hill are looking to make net neutrality and the FCC's authority law.
The new bill is expected to face opposition from Republicans. The broadband industry says it's not opposed to a law codifying the basic protections of net neutrality, but it will likely fight any provisions of the law that would reestablish the FCC's authority to regulate broadband networks.
"America's broadband customers have waited far too long for Congress to step up and codify the important net neutrality principles that broadband providers already follow today," Jonathan Spalter, president and CEO of industry group USTelecom, said in a statement. "But let's be clear: any such legislation cannot and must not be a backdoor for government to regulate prices and degrade the consumer internet experience."
Grassroots groups, such as Fight for the Future, which has supported federal net neutrality rules, said reestablishing FCC authority is critical. The group says that the COVID-19 pandemic made clear that broadband is no longer a luxury but a necessity. It believes a federal law codifying the FCC's authority over broadband will ensure the agency is able to fulfill its promise of ensuring every American has access to affordable broadband and to prevent broadband companies from "abusing their monopoly power," according to Evan Greer, director for Fight for the Future.
"We know that telecom giants and their friends in Congress are eager to take advantage of the situation [with the FCC's 2-2 split] and push for weak legislation that offers net neutrality in name only, while gutting the ability of the FCC to provide meaningful oversight," she said in a statement. "It's great to know that a true broadband justice champion like Senator Markey will be introducing a bill so that it will be clear what's *real* net neutrality and what's an industry backed fake."
Net neutrality and the states
Since the repeal of federal net neutrality protections, states, like California, which adopted net neutrality regulations in 2018, have been filling the void with their own rules. The federal courts have repeatedly upheld states' rights to enact these regulations, since the FCC, under Republican control, abdicated its authority.
After years of litigation, broadband industry trade groups in April finally dropped their lawsuit to block California's net neutrality law from going into effect. This could pave the way for other states to codify their own net neutrality protections. The result would be that in addition to California's law, companies would likely have to comply with a patchwork of state regulations.
While a clear set of federal net neutrality protections would be nice to have, experts say that isn't necessary.
"Service providers can comply with 50 sets of regulations," said Greg Guice, director of government affairs for Public Knowledge in a recent interview about the impasse with Sohn's FCC nomination. "It's not ideal. But I guess that's what the ISPs want, because that's what's happening without a fifth commissioner."