New president, new FCC, new net neutrality rules?

Throughout the pandemic, we’ve been focused on how the internet is everything. This week, we’re talking about the policy that affects the internet. One policy issue that has haunted every Federal Communications Commission in the past decade, and then some, is net neutrality. That’s the idea that internet service providers have to treat all content equally and can’t slow down or charge more for certain kinds of content.

Rules have ping-ponged between administrations. Obama’s FCC put neutrality rules in place in 2015 and Trump’s appointee repealed them in 2017. I recently spoke with the new acting chairwoman of the FCC, Jessica Rosenworcel, who supports net neutrality rules. I asked her if it’s time for Congress to make something permanent. The following is an edited transcript of our conversation.

Jessica Rosenworcel: You know, I think things are always sturdier when they’re written into law. But I also think that when the FCC chose, in 2015, to update its rules and make sure that net neutrality was in its policies, that decision was ultimately upheld in the courts. So I think that the agency can move here, too.

Molly Wood: One of the big loopholes in net neutrality rules, even when they’ve been in place, has been wireless. And now we’re sort of on the cusp, potentially — we’ve been on the cusp for a while — of a big 5G rollout. Do you think that any future rules need to be sort of updated to include all the ways that we get broadband access, not just fixed?

Rosenworcel: Yeah, I mean, I think that technology is changing at a really fast clip. It’s very exciting to see the speeds we might all be able to enjoy with 5G wireless. It’s exciting to see what’s happening with low-Earth orbiting satellite systems. I think there are going to be many more technologies that can deliver us high-speed broadband in the not-too-distant future. And whenever we change our policies, we’re going to have to take that into consideration.

Wood: In the years since the rules have been eliminated, has the FCC been able to measure a difference in how competition is occurring among companies? At least there’s sort of this living lab.

Rosenworcel: Yeah, one thing that has been happening is that Congress has expressed a lot of interest in this issue. There was a law passed in the House of Representatives to try to bring back net neutrality, [but] it did not make its way through the Senate. But one result of Congress working on this issue is that most of our providers have been on their best behavior. I’m not sure that we have a real assessment of what’s happened over the last few years, like you’re describing, but I think interest in this issue is still high. And I still support net neutrality, no doubt about it.

Wood: Do you see a universe where the FCC takes a role in content moderation on the internet, somewhat similar to what it does on television?

Rosenworcel: You know, I think for that to happen, Congress would have to really give us some new authority under the law. We are also, at the agency, following Congress very closely as it talks about online content, misinformation, disinformation and Section 230. But there is little in the Communications Act, right now, that would give the FCC authority to act there today.

Wood: Do you think it would be appropriate? I mean, it is sort of weird now that it’s this giant gap, right? The FCC has some content authority over television but not the internet. Should there at least be some sort of uniformity?

Rosenworcel: That’s one way of looking at it. I’d also point out that a lot of the FCC’s authority comes from its management of spectrum and broadcast airwaves, which is a scarce resource, and the distribution of those licenses is scarce. And so there’s a longer and different legal history associated with our authority here than with the internet, where online sentiment is almost infinite. So those things are just legally different, and they have different histories. But it would be up to Congress to give us some new authority in this area, because we don’t have it right now.

Related links: More insight from Molly Wood

As it happens, the New York Attorney General’s office announced yesterday that, in 2017, internet service providers that had long opposed net neutrality regulation paid companies to post millions of fake comments in support of the repeal of net neutrality regulations on the FCC website (and under the real names of people who had no idea it was happening).

At the time, it was quite clear that many of the comments during that public comment period were fake. We actually asked then-FCC Chairman Ajit Pai about it at the time, who told us he was confident the agency could tell them apart. As it happens, the investigation found that of the 22 million comments posted online, about 18 million were fake. Nine million came from this industry campaign and another nine million supported net neutrality rules. Almost 8 million comments in favor of the rules were reportedly submitted by a single 19-year-old.

New York Attorney General Letitia James said a trade group called Broadband for America, representing companies like AT&T, Comcast and Charter, spent more than $4 million hiring digital marketing companies to mount a campaign for the repeal in order to give Pai “cover” to undo the rules. However, somewhat strangely, the attorney general is only levying more than $4 million in fines on those third-party companies, not on the ISPs. Her office said it couldn’t find direct evidence that Broadband for America knew the marketing companies it hired were faking comments instead of generating real marketing campaigns. This, despite the trade group regularly citing the number of comments in support of repeal –– and all the news reports at the time that noted the comments were super fishy.