In August 2020, during the heart of the covid-19 pandemic when many schools were closed, social media and news outlets were awash with a picture of two grade school students sitting outside of a Taco Bell, attempting to do their schoolwork. That one picture changed millions of minds about the necessity for everyone in the US, regardless of economic status or geographic location, to have an affordable broadband Internet connection.  

It would not be hyperbole to say that this one photo was one of the motivating factors behind Congress including $14.2 billion for the Affordable Connectivity Program (ACP) in the 2021 Bipartisan Infrastructure Law. The ACP currently provides over 23 million low-income households $30 each month to better afford broadband service (families on tribal lands and very rural areas receive $75 monthly). The number of households participating in the ACP is even greater than those participating in the Supplemental Nutrition Assistance Program (SNAP). 

Unfortunately, unless Congress acts very quickly, low-income Americans may again be forced to sit outside of fast-food restaurants to get internet access. 

Support for the ACP is broad and diverse, spanning governors, mayors, state legislators, and members of Congress across the political spectrum. The creation of the ACP, along with other programs to fund broadband deployment across the US, was a firm recognition that universal and affordable connectivity is vital to a healthy society and economy.

Despite its popularity, the ACP will run out of money by the end of April unless Congress appropriates billions in additional funds. There is a bipartisan push to extend the program, but time is running out, and the Federal Communications Commission (FCC), the agency that oversees the ACP, has already issued guidance to broadband providers on how to wind down the ACP and notify recipients that they will likely lose their internet service. 

The intense but so far unsuccessful effort over the past year by a wide swath of stakeholders — including civil society, federal and local officials and broadband providers — to secure funding for the ACP is clear evidence of why the congressional appropriations process is ill-suited for funding important telecommunications priorities, like universal access to affordable broadband.

Fortunately, there is a better alternative. 

Congress empowered the FCC to take on the important work of ensuring “all people of the United States” have access to an evolving level of communications services. That goal, termed “universal service,” is primarily pursued through the Universal Service Fund (USF), which Congress created as part of the Telecommunications Act of 1996. The USF is financed by a fee imposed on certain revenues for traditional telephone services. Consumers who purchase such services typically see a line item on their bill for a “universal service fee.” As Congress envisioned, the USF has advanced from supporting one essential communications network, telephone service, to supporting the essential communications network of our time, broadband internet.

The approximately $8 billion the USF spends annually to help close the digital divide has funded connectivity to rural, tribal, and remote areas that were deemed “uneconomic to serve.” It has provided access for schoolchildren and library patrons, many of whom would not otherwise be able to afford access and thus would have been left behind in this digital economy. It has provided connectivity for rural health clinics, helping ensure that telehealth can be delivered to people where they live instead of forcing them to drive hundreds of miles or go without care. And it has helped millions of low-income households get and stay connected to wired and mobile networks. Every single state and territory has greater connectivity as a result of the USF.  

These important missions remain vital because the work is not done. The Universal Service Fund must be reenvisioned to address today’s needs, including ensuring that there is a permanent funding mechanism for the ACP’s subsidy for low-income households. The Communications Act gives the FCC the power to modernize and expand how the USF is financed. As mentioned previously, only telephone companies, through their customers, currently pay fees into the USF. As more and more companies cease providing telephone services, they stop contributing, which increases the burden on a handful of companies and consumers. This is not sustainable. 

To prevent the USF from collapsing and to save the broadband subsidy, the FCC should, without delay, start a proceeding to sustain and expand the USF through contributions by additional communications networks. It almost goes without saying that broadband companies should contribute to the fund, although others have urged that Congress should give the FCC the power to consider applying the fees to other companies that use communications networks, like cloud services or online companies like Google and Meta. Once the base of companies contributing to the USF is expanded, the FCC can replicate or even improve upon the subsidy that Congress provided in the ACP. 

The FCC must modernize the Universal Service Fund regardless of whether Congress extends the ACP. The funding levels proposed in Congress and by the White House would only provide enough support for a year at most, and if the process we are going through now to get this extension is any indication, seeking funding beyond this year will be much, much harder. 

When it passed the Bipartisan Infrastructure Law, Congress allocated $65 billion in funding for broadband deployment, affordability, and adoption. The text of the bill also intentionally paved the way toward modernization of the USF, explicitly inviting the FCC to make recommendations to Congress for the expansion of the fund. Unfortunately, the agency largely punted, discussing a variety of options but going no further. 

We are facing another “kids doing school work in front of a Taco Bell so they can use the Wi-Fi” moment, where over 23 million US households are in danger of losing affordable connectivity. The FCC has an opportunity and the power to save the program it stood up and nurtured. It should do so with urgency.

Gigi Sohn is one of the nation’s leading public advocates for open, affordable, and democratic communications networks. She serves on the Board of the Affordable Broadband Campaign, a nonprofit organization dedicated to ensuring that everyone in the US can benefit from what broadband internet access enables. 

Greg Guice has over two decades of experience working on federal efforts to close the digital divide in rural and tribal communities and for low-income families across the country. He serves as board chair of the Affordable Broadband Campaign and is also chief policy officer at the Vernonburg Group.

Last week, the Federal Communications Commission voted to start a proceeding to repeal the 2015 network neutrality rules and the legal authority underlying it, Title II of the Communications Act of 1934. The rules ensure that internet users can access the online content and services of their choosing without interference from ISPs like Comcast, AT&T, Verizon, and Charter.

Yesterday the FCC made its final proposal to repeal the rules public. This document, known as a Notice of Proposed Rulemaking, or NPRM, is nearly identical to the draft Chairman Ajit Pai made public on April 27th. The NPRM starts the official period for public comment on the FCC’s proposal — comments are due on July 17th, and reply comments are due on August 16th. If you’ve already filed a comment, don’t worry — those count just as much as comments filed during the “official” comment period.

Normally, the purpose of an NPRM is to provide an agency with a record so that it can decide whether and how to regulate. But the net neutrality repeal NPRM leaves little doubt that this FCC is intent on completely abdicating its role in overseeing broadband internet access.  

What the NPRM says

The first half of the NPRM sets out the FCC majority’s proposal for reversing classification of broadband internet access services as “telecommunications services” governed by Title II of the Communications Act. Among other things, this section discusses the effect this reversal would have on the FCC’s ability to enforce its privacy laws and implement its Lifeline program, which provides a subsidy to low-income households for broadband.

The second half purports to “re-evaluate” the existing net neutrality rules, the mechanisms that enforce them and any legal authority (other than Title II) that could be used to support them. The FCC majority proposes to eliminate the “general conduct standard,” which prohibits ISP practices that “unreasonably interfere or unreasonably disadvantage” the ability of consumers to access the online content and services of their choosing, and the ability of online content and service providers to freely access customers. With regard to the remaining rules (no blocking, no throttling, no paid prioritization, transparency), the majority doesn’t make firm proposals on whether to retain or repeal them. Instead, it asks questions about whether the rules are even necessary.   

Back to Title I

The NPRM makes very clear the FCC majority’s distaste for the 2015 decision to reclassify both fixed and mobile broadband internet access services as telecommunications services under Title II, saying, among other things, that it “put at risk online investment and innovation, threatening the very open Internet it purported to preserve.”

The FCC majority makes three arguments in support of its proposal to reverse the 2015 classification decision:

• First, it argues that the plain language, structure, and history of the Communications Act makes clear that broadband internet access services are “information services,” which would subject them to weaker oversight by the FCC.
• Second, the majority argues that FCC precedent supports this reclassification, relying on what it claims are bipartisan decisions to that effect.
• Third, citing nothing more than ISP-funded studies, it argues that Title II classification has “resulted in negative consequences for American consumers — including depressed broadband investment and reduced innovation because of increased regulatory burdens and regulatory uncertainty…”  

The NPRM asks about some aspects of the proposal to reclassify broadband internet access providers, but the leading questions it asks make the ultimate outcome clear.

For example, the NPRM asks about ways in which consumers were harmed prior to the 2015 decision, referring to “only four articulated examples” of harm from discriminatory ISP actions. The NPRM then asks: “Do these isolated examples justify the regulatory shift that Title II reclassification entailed? Do such isolated examples constitute market failure sufficient to warrant pre-emptive, industry-wide regulation?” These inquiries are hardly objective.

Asking if we need net neutrality rules at all

The NPRM first proposes to eliminate the general conduct standard, which ensures protection from discriminatory conduct not captured by the other bright line rules, including new practices in which an ISP might engage in the future. Making clear its intentions, the FCC majority “seek[s] comment on whether eliminating this vague standard will spur innovation and benefit consumers.” Importantly, the majority proposes “not to adopt any alternatives” to the rule.

With regard to the basic rules of net neutrality — no blocking, no throttling, no paid prioritization and transparency — the NPRM asks the same general question: are they necessary? Here again, the text of the NPRM and leading questions reveal the majority’s preference: to have no net neutrality rules at all. For example, the NPRM asks:

whether…regulatory intervention in the market is necessary in the broadband context. Beyond the few scattered anecdotes cited in the Title II Order have there been additional, concrete incidents that threaten the four Internet Freedoms sufficient to warrant adopting across-the-board rules?  Is there any evidence of market failure, or is there likely to be, sufficient to warrant pre-emptive, comprehensive regulation?

Is there other legal authority to adopt rules?

If there was any question that the FCC majority has no intention of retaining or replacing any of the current net neutrality rules, the NPRM’s discussion of other possible sources of legal authority for future rules leaves no doubt. Put simply, the majority doesn’t think such authority exists.

Most telling is the NPRM’s discussion of the most likely source of authority, Section 706 of the Telecommunications Act of 1996. Section 706 requires the FCC to 1) encourage deployment of broadband “on a reasonable and timely basis” by utilizing a number of different regulatory mechanisms, and 2) eliminate barriers to broadband deployment if it finds broadband is not being deployed on a reasonable and timely basis.

While the federal courts on several occasions have upheld Section 706 as an independent grant of legal authority for certain broadband rules (for example, rules that require mobile wireless providers to enter into data roaming agreements), the majority asks if “better reading” of the law is that the language is not a grant of authority but merely “hortatory” (encouraging). It appears the majority intends to adopt an interpretation of Section 706 that would render it largely useless, leaving the FCC without any ability whatsoever to oversee the broadband market.

Impact of reclassification on privacy and Lifeline

The discussion of the impact of reclassification on privacy and Lifeline is brief. The majority recognizes that its proposal would strip the FCC of any ability to adopt rules to protect consumers’ broadband privacy, but it is content to cede that authority to the Federal Trade Commission. The FTC, as I’ve written about previously, can only enforce its governing laws — it can’t adopt rules to protect consumers before they’re harmed.

The majority also concludes without much discussion that its ability to support broadband with Lifeline funds is not jeopardized. Not that it would care much if Lifeline was endangered — Chairman Pai has made clear in word and deed that he dislikes the program. Interestingly, the NPRM does not ask whether the universal service program that provides subsidies to rural ISPs would be at risk under the majority’s proposal. The chairman has made providing such subsidies a cornerstone of his FCC agenda.  

What you can (and should) do:

I’ve painted a bleak picture of the NPRM and the outcome its authors are driving toward. But that should not discourage you or anyone who cares about the future of an open internet. The publication of the final NPRM restarts the comment period and it’s imperative that everyone who wants to preserve net neutrality leave a comment. You can do so here and here. Jake Kastrenakes gives you the step-by-step here.  

If you can, you should address some of the issues I’ve raised. If you can’t and just want to tell the FCC why you think the 2015 rules and Title II classification should be preserved, that’s great, too. If you have the time, send your comment to your member of Congress and your senators, or just call their offices.  

Already over 2 million comments have been filed in the net neutrality proceeding, and the vast majority of those comments support the 2015 rules. Your participation will demonstrate to the FCC and your elected representatives in Congress that you and millions of other Americans care deeply about this issue. In light of the continued uproar over Congress’ repeal of the FCC’s 2016 broadband privacy rules, enormous public opposition to repeal of the net neutrality rules should give policymakers pause before stripping internet users of yet another important protection.