One week after a federal court upheld the Federal Communications Commission's landmark net neutrality policy, emboldened FCC officials are moving to advance an ambitious set of reforms that are already generating static from the broadband industry and its political allies.
The decade-long battle over net neutrality, the principle that all content on the internet should be equally accessible to consumers, is not over. Industry giant AT&T has said it plans to join an appeal of the DC Circuit's decision to the Supreme Court, and net neutrality foes in Congress continue to pursue their relentless campaign aimed at knee-capping the FCC's consumer protections.
But now that the FCC's regulatory authority is on the strongest legal footing in years, agency officials are well-positioned to address pressing policy issues without the albatross of net neutrality around their necks. Speaking to the National Press Club on Monday, FCC Chairman Tom Wheeler sounded a defiant note on the question of the agency's legal power as he outlined new plans to promote 5G wireless spectrum.
"Our networks are open and will remain open for innovators to use without permission, and for consumers to access any place they want to go on the web, without permission, without blocking, without throttling, and without paid prioritization," Wheeler told reporters.
In the wake of the DC Circuit's decision affirming the agency's reclassification of broadband as a telecommunications service under Title II of the Communications Act, the FCC is in a strong position to redouble its efforts to ensure ubiquitous, affordable broadband access throughout the country, and to address policy objectives that had been in limbo as the court deliberated on net neutrality.
"The agency can now stay focused on safeguarding the open communications networks that power our democracy and our economy and on promoting broadband competition, privacy and affordable internet access for everyone," said Craig Aaron, president and CEO of DC-based public interest group Free Press, which has long advocated for consumer-friendly federal telecom policies.
Among the issues facing the FCC: the agency's effort to include broadband access in the embattled Lifeline subsidy program; the agency's industry-opposed plans to establish new rules protecting consumers from broadband privacy abuses, and to break the cable and satellite stranglehold on the set-top box market; and action on the controversial practice of "zero-rating," which exempts certain online services from data caps, effectively favoring those services over rival offerings.
Zero-rating is a particularly urgent issue, according to open internet advocates, because the FCC's position on the matter has been ambiguous at best. In its net neutrality rules, the FCC did not explicitly prohibit zero-rating, but rather indicated it would address the issue on a case-by-case basis.
As a result, many of the nation's largest broadband companies, including AT&T and T-Mobile, have moved swiftly to take advantage of this regulatory loophole by introducing plans that allow consumers to access certain services that don't count against data caps. These plans create an economic incentive for consumers to use some services over others, effectively establishing the kind of discriminatory environment that the FCC's net neutrality policy is supposed to prevent.
And because zero-rating plans are predominantly targeted at wireless users, such discrimination disproportionately affects the people most likely to rely on mobile devices for their primary internet connection: low-income communities, communities of color, and rural communities that are underserved by fixed-line access.
"The court affirmed the FCC's authority," said Malkia Cyril, co-founder and director of the Center for Media Justice. "Now the question is whether the FCC will use its authority to ensure that poor communities have equal access to the whole internet instead of access to just a part of it, which is what zero-rating plans are for. That's going to be the next step in this battle."
For the FCC, another priority will be protecting against efforts to undermine its plan to include broadband subsidies in the Lifeline program. Consumer advocates say this initiative, which modernizes a Reagan-era program originally designed to subsidize phone service for low-income people, could help close the nation's persistent "digital divide." But Republicans in Congress are already working to undermine the program and reduce its budget.
"Now that broadband internet access service is defined as a telecommunications service under Title II, it fits very well under the definition of services that are worthy of support under the Lifeline program," said Michael Scurato, vice president for policy at the National Hispanic Media Coalition. "So it's critically important having this regulatory certainty around the FCC's authority to getting more folks access to affordable broadband."
The FCC's plan to establish new rules regulating broadband industry practices like "supercookies" and other forms of tracking is also now on "solid legal footing" because the agency's net neutrality policy provides the legal basis for such action, according to Free Press policy director Matt Wood. "The FCC is relying on Title II authority for that proceeding as well, and luckily they can go ahead with that rule-making as planned," Wood said.
The DC Circuit's decision affirming the FCC's net neutrality authority could not have come at a more opportune time, because the traditionally slow-moving agency is racing against the political clock. In just a few short months, there will be a new US president, whose prerogative it will be to select a new FCC chair who might pursue an entirely different policy agenda or seek to undo the current FCC's reforms altogether.
That's why a key priority for Wheeler and his colleagues, not to mention open internet advocates, during the remaining months of the Obama administration will be to protect the agency's net neutrality victory from attacks by the broadband industry and its friends in Congress. Even as the newly emboldened FCC presses forward on a variety of policy fronts, the agency and its allies are certain to push back vigorously against further legal and political challenges in federal court and the halls of the US Capitol.