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FCC Again Rejects Net Neutrality Even as Controversy Reignites

WASHINGTON, DC - FEBRUARY 26:  The seal of the Federal Communications Commission hangs inside the hearing room at the FCC headquarters February 26, 2015 in Washington, DC. The Commission will vote on Internet rules, grounded in multiple sources of the Commissions legal authority, to ensure that Americans reap the benefits of an open Internet.  (Photo by Mark Wilson/Getty Images)
By Joseph Fawbush, Esq. on October 28, 2020 3:19 PM

The fight over net neutrality is not over. Even as states individually tackle the issue of equal access to broadband, the Federal Communications Commission again voted to reject the Obama-era regulation mandating internet service providers (ISPs) provide equal access to bandwidth. The FCC ended net neutrality in 2017, reaffirming its commitment to this on October 27, just days before the election.

The D.C. Circuit Court of Appeals upheld the repeal in 2019 but sent a remand order to the FCC to resolve several issues:

  • How the repeal of net neutrality could impact public safety
  • The regulation of "pole attachments" (attachments telecommunications providers make to a utility pole or conduit)
  • Access to broadband for low-income consumers through its Lifeline program

Yeah, We're Good

On a party-line vote, the FCC maintained that the D.C. Circuit's remand order did not change in any way the agency's repeal of net neutrality. According to the proposed draft order, the FCC maintains that its Restore Internet Freedom Order (RIFO) promotes public safety, any loss of pole attachment rights for broadband providers is minimal compared to the benefits, and the Lifeline program is allowed under federal law.

The order gets into the weeds of telecommunications regulations, but one example of the issues at play involves the access broadband-only providers have to utility poles. Historically, it has been difficult for broadband-only providers to access these poles to add attachments and expand their networks. In reclassifying broadband to an information service under federal law, broadband-only ISPs lost some legal protections. Does this hurt new market entries? According to the FCC, no: "[I]t would be counterproductive to upend our light-touch regulatory framework for broadband Internet access service because of speculative concerns that at most would impact a small minority of ISPs and consumers" it argues.

An Endless Election Issue and Legal Battle?

While not a prominent part of either campaign, Democratic candidate Joe Biden has made the reinstatement of net neutrality part of his platform. President Trump, meanwhile, supports the FCC's current stance.

The two Democrats on the FCC wrote that the order does not do enough to address the D.C. Circuit Court's questions. Should the federal appeals court agree, it could once again take up the case (the order is almost certain to be challenged in court) and potentially send another remand order. Of course, that presumes that President Trump wins re-election and the FCC maintains its position.

Both sides seem to be entrenched. There is no end to the legal fight in sight. Meanwhile, in part perhaps due to the uncertainty still surrounding the issue, no ISP has changed the way consumers can access the internet, despite having the authority under federal law to do so. The fight continues.

Related Resources

The Net Neutrality Fight Moves to the States (Probably) (FindLaw's D.C. Circuit Court of Appeals)

California Pushing Ahead for Net Neutrality (FindLaw's California Case Law)

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