The Trump FCC's Net Neutrality Repeal Is Still Wrong

On Wednesday, Free Press condemned the Federal Communications Commission’s abandonment of its authority to safeguard internet users and promote universal and affordable access to an open internet.

In 2019, the U.S. Court of Appeals for the D.C. Circuit 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 its decision’s impacts on public safety and broadband-infrastructure policy. Wednesday evening was the deadline for public comments to the agency on this process.

The court found that 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.

Free Press’ reply comments filed Wednesday evening note that the agency’s “misguided repeal of Net Neutrality and its authority over broadband internet access service harms the Lifeline program, pole-attachment regulation, and public safety,” concluding “the best remedy for such harms would be for the Commission to once again correctly classify broadband as a Title II service protected by strong open-internet rules.”

Free Press Policy Manager Dana Floberg made the following statement:

“It’s still just as clear today as ever that the FCC should reclassify broadband as a Title II service. The only dissenting views in this proceeding came from broadband-industry-aligned lawyers, lobbyists and front groups whose arguments rest on unproven claims that the Trump FCC’s repeal has somehow spurred a golden age of broadband investment and fiber deployment. But these investment claims are built on falsehoods and disinformation with zero evidence in actual investment figures.

“Chairman Pai’s shameless credit-taking for broadband-market growth is driven by his own arrogance rather than actual numbers. Deployment in the years following his 2017 decision to reclassify broadband access continued on the trajectory established during the Obama era. Any growth in fiber-to-the-home buildout is not due to Pai’s actions but to the completion of projects that ISPs publicly announced well before Pai settled into the FCC chair.

“Restoring Title II authority is the only way to give internet users the legal protections they need to access an open and affordable internet. Title II formed the solid legal foundation for popular Net Neutrality protections. But it also gave the agency the authority it needed to deal with the issues the court sent back to the FCC: ensuring that vital broadband-affordability programs like Lifeline could promote internet adoption to communities that have been stranded on the wrong side of the digital divide.

“The Trump FCC’s unjustified repeal of the Net Neutrality rules in 2017 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. But the FCC response to the pandemic has been largely limited to the chairman merely exhorting broadband providers to sign a voluntary pledge to keep people connected, despite evidence that many of these ISPs are already breaking their promises to internet users.

“Back in 2017, millions of people of all political stripes demanded that the FCC protect a free and open internet. Instead, Chairman Pai imposed his unmoored, ideological vision for stewarding and safeguarding people’s internet access. The court’s remand shows that 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 restoring its authority to do so first.”