In one of his first and most controversial actions, Federal Communications Commission Chairman Ajit Pai set in motion the elimination of Obama administration net neutrality rules, which the FCC ultimately scrapped in December 2017. At their core, the principles of net neutrality are essentially that in the present day, federal regulators should not be treating internet access as a specialized service, but as a public service available to everyone, much as the FCC currently treats telephone services. Shortly after his election, President Trump made Pai, an FCC Obama-appointee and former lawyer for Verizon, chair of the commission.
Net neutrality as a legal concept came about during the Obama administration via the FCC Open Internet Order of 2015. This order reclassified broadband internet access service from a Title I information service to a telecommunications service under Title II of the Communications Act of 1934—much like a utility such as telephone service, gas, or water. The Title II designation allowed the FCC to engage in more stringent regulation of internet service providers (ISPs) and ensure that these companies could not throttle, slow, monopolize, or otherwise interfere with internet access to certain websites, nor could companies charge site hosts extra fees to provide faster lanes to consumers (also known as paid prioritization). While advocates of net neutrality continue to argue that this Title II designation is necessary to regulate the small number of large corporations that act as ISPs and to ensure a "fair and open internet for all," critics state that the reclassification was an overreach of regulation and had a chilling effect on competition in the marketplace.
At the time of the proposed reclassification under Chairman Pai, the higher education community expressed support for the tenants of net neutrality. In advance of a vote on reclassification, the FCC requested public comment on the issue, at which time NACUBO joined eight other higher education associations in an effort, led by EDUCAUSE, to submit substantive comments to this effect. Ultimately, the five sitting FCC commissioners voted along political party lines and in a 3-2 decision reclassified ISPs and effectively eliminated net neutrality.
Congress Reengagement
In early 2019, House Democrats introduced a series of bills aimed at undoing the repeal of net neutrality that were ultimately combined and condensed into a simple, three-page piece of legislation known as the Save the Internet Act of 2019. The act would both undo the repeal of net neutrality by reclassifying ISPs as Title II utility service providers and, more crucially, codify the rules into law, making it much more difficult for a future FCC chair to undo them.
While the Democrat-controlled House passed this legislation in April 2022 by a vote of 232-190, Senate Majority Leader Mitch McConnell referred to the legislation as "dead on arrival" in the Republican-controlled Senate. Indeed, despite the legislation being introduced in the Senate and having 45 co-sponsors in the 100-person body, it has yet to receive a formal vote on the Senate floor. The Trump administration bolstered McConnell’s claim, with White House aides publicly stating that they advised the president that he should veto the bill should it ever make its way to his desk.
The idea of net neutrality is not, however, without bipartisan support. Congressional Republicans also introduced a series of bills in early 2022 that would impose a form of net neutrality rules but without once again reclassifying ISPs under the Title II common carrier regulations. While the GOP bills would create rules against blocking, throttling, or any sort of practice where ISPs charge site hosts for paid prioritization that would also be against public interest (primarily websites that provide public health and safety information), congressional Democrats say that the lack of reclassification makes the bills a non-starter for their support.
Title II designation, Democrats argue, is imperative because it allows the FCC to adequately enforce such rules and impose other consumer protections on ISPs—such as requiring substantive network transparency and providing universal service and disability access, among others. Still, the potential for bipartisan legislation is not entirely lost. In March 2019, Chairman of the U.S. Senate Committee on Commerce, Science, and Transportation Roger Wicker (R-MS) and committee member Kyrsten Sinema (D-AZ) announced the creation of a bipartisan net neutrality working group with the goal of drafting a new bipartisan net neutrality bill.
With this in mind, Jarret Cummings, EDUCAUSE senior adviser for policy and government relations, noted, "While the Save the Internet Act is unlikely to become law, the House Democrats’ action is important regardless. Polls show that an overwhelming majority of voters in both parties want net neutrality and securing it over the long term will probably require bipartisan legislation. It’s unlikely we’ll see that before the D.C. Circuit and possibly the Supreme Court rule on the Pai FCC’s 2017 repeal order later this year. The Save the Internet Act makes clear, however, what the House’s starting point for those negotiations will be, which strengthens the hand of Senate Democrats in working on a compromise with their Republican colleagues."
State and Judicial Net Neutrality Maneuvering
Even as Congress and the administration continue to debate whether net neutrality is necessary, what it should look like, and who should enforce it, the battle continues to play out at the state level and in the courts.
Immediately following the FCC’s repeal of net neutrality in 2017, nearly two dozen states; some of the country’s largest tech companies; the Internet Association, which represents online giants such as Amazon, Google, Microsoft Corp., and Facebook; and others joined together to sue the FCC (Mozilla Corp. v. FCC), arguing that it acted improperly in undoing the Obama rules. This case is pending in the U.S. Court of Appeals for the District of Columbia Circuit, and a decision is expected in summer 2019.
Meanwhile, multiple state governments acted following the federal repeal of net neutrality protections and wrote and implemented their own state-level net-neutrality protections, including California, which passed a bill that is often touted as the toughest net neutrality law ever enacted in the U.S. The Trump administration has sued the state over the law, claiming that the federal government holds exclusive power to regulate net neutrality so that all 50 states do not create an untenable set of rules that would feature different internet regulations in every state. The outcome of that case, which is currently pending, potentially holds ramifications for all state-level attempts to ensure net neutrality.
NACUBO will continue to monitor and update members on the progress of net neutrality efforts in federal, state, and judicial arenas.
NACUBO CONTACT Megan Schneider, senior director, government affairs, 202.861.2547