Free Press Weighs in on Harms of FCC's Net Neutrality Repeal in Response to Appeals-Court Remand

WASHINGTON — On Monday, Free Press filed comments that condemn the Federal Communications Commission’s abandonment of its authority to safeguard internet users and promote universal access to an open and affordable internet.

The filing was in response to an October 2019 U.S. Court of Appeals decision to remand for further consideration by the FCC three key issues related to the agency’s 2017 Net Neutrality repeal, which also rolled back other vital protections under Title II of the Communications Act.

The court commanded the FCC to examine the impacts of removing Title II as a source of authority for broadband’s inclusion in the Lifeline subsidy program. The court also ordered the agency to analyze and account for the decision’s impacts on public safety and broadband-infrastructure policy.

The Free Press filing notes that the court decision found the FCC under Chairman Ajit Pai had “arbitrarily and capriciously failed to address the serious cascading implications of scrapping its Title II classification of broadband internet access service, with the Commission committing ‘straightforward legal error’ by refusing to consider these questions properly in its headlong rush to get rid of strong Net Neutrality rules and the legal framework on which they stood.”

“[T]he Commission has only itself to blame for these errors,” Free Press adds, “and the best remedy for the harms they have caused would be a return to its proper authority in Title II.”

Free Press Policy Manager Dana Floberg made the following statement:

“The evidence couldn’t be clearer: The FCC needs to reclassify broadband as a Title II service. This is the only way to give internet users the legal protections they need to access an open and affordable internet. Title II was the solid foundation for wildly popular Net Neutrality safeguards, but the law does more than that. Title II classification also gave the agency the authority it needed to ensure that vital programs like Lifeline could support broadband adoption and choice.

“The Trump FCC’s unjustified repeal of the Net Neutrality rules in 2017 also tossed out the agency’s best source of authority to promote broadband competition, protect public safety and more. The COVID-19 pandemic has made the need to treat broadband as an essential service more obvious than ever before. The Commission’s response to the pandemic has been largely limited to the chairman ‘exhorting’ broadband providers to sign a voluntary pledge about keeping people connected and essentially just hoping they stick to it.

“The D.C. Circuit Court’s remand demonstrates what Free Press and others have said all along: Title II classification is crucial, and not just for Net Neutrality. The Pai FCC’s lackluster response to protecting and promoting broadband connectivity during the COVID-19 pandemic casts this problem into sharp focus. In the long run, people will lose out if the agency sticks to its misguided efforts and tries to place even more weight on its shaky legal theories. Returning to the Title II framework remains the best, clearest and easiest way to safeguard the public interest, prevent discrimination, support universal broadband service and protect public safety.

“People of all political stripes overwhelmingly demanded a free and open internet, and instead Chairman Pai stuck us with this dumpster fire. The court’s remand shows that Chairman Pai’s interpretation of his agency’s legal authority rests on very unstable ground. There’s little sense in the FCC pretending it can address these crucial broadband issues without cleaning up its mess first.”