FCC Takes Another Step away from Net Neutrality

After 15 years of unrelenting regulation and litigation, the days of net neutrality as a live policy issue in Washington may be numbered.

At its open meeting today, the Federal Communications Commission (FCC) approved an order aimed at resolving some lingering questions about the agency’s Restoring Internet Freedom order. That order, issued in early 2018, declared that Internet service providers would not be regulated like telephone companies under the Communications Act. After reviewing the legality of this order, the U.S. Court of Appeals for the District of Columbia Circuit largely upheld it in late 2019, but sent it back to the FCC to take another look at three issues: public safety communications, pole attachment rights, and the FCC’s universal service Lifeline program.

As the FCC explains in today’s order, the issues raised by the D.C. Circuit do not change the agency’s mind about its decision not to apply common carrier regulation to broadband providers.

As for public safety communications, many public safety agencies use dedicated, specialized networks that are distinct from the wireless broadband services offered to ordinary consumers by mobile carriers. And to the extent that public safety agencies rely on commercial wireless networks, several major companies offer services that give enhanced priority to public safety-related communications. Moreover, refraining from excessive regulation of broadband providers means they will invest more in improving their networks, ultimately benefiting public safety.

Regarding pole attachments, the Communications Act tasks the FCC with maintaining price controls on certain poles, conduits, ducts, and other rights of way owned by utilities. Setting aside whether the FCC ought to have authority in this area—a question my colleague Wayne Crews has previously discussed on these pages—the FCC correctly concludes that the deregulatory benefits of its Restoring Internet Freedom order outweigh the limited loss of pole attachment rights by the relatively small portion of broadband providers that do not offer cable television or telecommunications services.

Finally, as for the Lifeline program, which provides discounts on telephone and broadband service to some low-income households, the FCC argues that subsidizing broadband is allowed by law even if broadband service is not regulated as a common carrier. But regardless of whether the FCC can subsidize broadband—or whether it ought to do so in the first place—regulating broadband companies under a public utility-style framework is the wrong approach.

After today’s vote, hopefully the FCC can turn its focus to other priorities, such as freeing up the airwaves so that they can be used by mobile carriers to deploy advanced wireless networks.