Net Neutrality - ACLP Files Comments in FCC Open Internet Docket

The ACLP at New York Law School has filed comments in the FCC’s Open Internet docket regarding net nuetrality (WC Docket No 23-320).

Overview

The ACLP’s comments chide the FCC for citing the pandemic as the primary impetus for its proposal. The Commission argues that, because broadband became even more essential during the pandemic, regulation is needed now more than ever. In response, the ACLP’s comments argue that, rather than being convincing, the use of the pandemic in this manner is grotesque and self-aggrandizing. Moreover, leveraging the pandemic actually weakens the Commission’s arguments in support of reclassification in two ways.

First, the ACLP observes that broadband thrived during the pandemic because the prevailing light-touch regulatory framework allowed ISPs to be nimble in adjusting their offerings in response to rapid changes in consumer demand. A variety of studies support this view, noting:

• Broadband has become even more important to economic growth, employment, health, etc. thanks in large part to the prevailing regulatory framework.
• When compared to the performance of networks regulated in a more onerous manner (e.g., networks in Europe), the performance of U.S. broadband is even more impressive.

Second, Congressional action during the pandemic made clear that Congress supports the current Title I classification of broadband. The Major Questions Doctrine, the application of which will almost certainly be triggered when the FCC’s reclassification order is reviewed on appeal, hinges on the extent to which Congress has intended for an agency to engage in an action of economic and political significance. Congress was unusually active during the pandemic. It passed a number of significant spending/stimulus bills, most of which included broadband-related components. There is no evidence that Congress debated or explored the possibility of reclassifying broadband when it considered and passed these bills. Combined with the numerous pro-net neutrality bills that have been introduced but failed to proceed in Congress over the years, it is reasonable to argue that Congress’s intent for broadband is to maintain the current regulatory framework.

The Comments close with a section that explores how reclassification is inconsistent with and will undermine the implementation of BEAD. It is well documented that Title II regulation negatively impacts broadband investment. This could discourage ISPs from participating in BEAD, reduce the amount of matching funds proposed by applicants, increase the number of match waivers sought, etc. In addition, Title II raises compliance costs, which could discourage small ISPs and new entrants from participating in BEAD. These kinds of impacts are inconsistent with the IIJA and NTIA’s rules for the BEAD program, which prioritize minimal BEAD outlays and the elimination of barriers impeding the participation of ISPs of all ilk.

Michael Santorelli is the Director of the ACLP. Alex Karras is a Senior Fellow at the ACLP.