Last week, President Biden finally made his picks for FCC Commissioners, and the two women nominated constitute a veritable “dream team” for net neutrality and regulatory advocates.  As expected, Biden chose Acting Chairwoman Jessica Rosenworcel to become permanent FCC Chairman.  Since her term ends this year, under the agency’s rules, she must be confirmed by the Senate by December 31, 2021, to remain on the Commission.  Expect Democrats to work quickly in Senate terms) to approve her.   

Chairwoman Rosenworcel has repeatedly made it clear that she favors net neutrality, and the Commission erred when it eliminated those rules.  Here is what she wrote in her dissent to the Restoring Internet Freedom Order: 

Net neutrality is internet freedom. I support that freedom. I dissent from this rash decision to roll back net neutrality rules. I dissent from the corrupt process that has brought us to this point. And I dissent from the contempt this agency has shown our citizens in pursuing this path today. This decision puts the Federal Communications Commission on the wrong side of history, the wrong side of the law, and the wrong side of the American public... This is not acceptable. It is a stain on the FCC and this proceeding. This issue is not going away. It needs to be addressed.  (Dissenting Statement of Commissioner Jessica Rosenworcel, Docket 17-108, Declaratory Ruling, Report and Order and Order, released January 4, 2018.). 

Rosenworcel has also made it clear she wants truly accurate broadband maps before releasing more universal service money and she wants stronger privacy rules.  As FCC Chairwoman with a Democratic majority, she will certainly impose more regulations on ISPs. 

 Biden’s second FCC pick is more of a surprise.  He nominated Gigi Sohn.  She is a distinguished fellow at the Georgetown Law Institute for Technology Law & Policy and a Benton Senior Fellow & Public Advocate.  She previously worked for Chairman Wheeler at the Commission and was a clear advocate for net neutrality both at the FCC and at Public Knowledge, the ultra-liberal consumer advocacy group she co-founded.  Earlier this year she told the Daily Dot Newsletter that the Internet needs more regulations, including a return to Title II for broadband and new privacy rules. 

[N]et neutrality is coming back one way or another and I think the way it will first come back is through the FCC when there’s a full complement of commissioners. That’s the big thing we are waiting for, obviously... But not to beat a dead horse, the first thing that needs to come back before net neutrality comes back is FCC authority. The courts have told us you can’t have real net neutrality unless the agency has Title II authority. So that’s the first thing the FCC has to do. That of course gives them not only the power to adopt new net neutrality rules, it gives them the power to adopt new privacy rules if they want to.  When I was at the FCC we adopted very strong privacy rules for broadband providers. Congress repealed them using the Congressional Review Act.  Well, we’re not allowed to bring back the same rules or substantially similar rules, but we could bring back stronger rules.  We could do that.  We could go after fraudulent billing, we could go after price gouging.  I think, very importantly for closing the digital divide, it puts our authority to strengthen Lifeline, to make improvements to the High Cost Fund, it puts it on firmer legal ground. I think people don’t realize that. (Daily Dot Newsletter, March 23, 2021 Interview with Gigi Sohn, emphasis in original). 

For proponents of a net neutrality free Internet, the outlook for 2022 is not looking great.  The WasteWatcher, the staff blog for Citizens Against Government Waste, noted in an online article called “The FCC Could have A Dark Future”: 

So-called net neutrality does not create a level playing field for internet access.  Instead, it creates an opportunity for the agency to conduct rate-setting, heavy-handed government regulations, and the imposition of common carrier restrictions on the most vibrant sector of the U.S. economy.  Reversing course again on internet freedom will create even more uncertainty for internet providers, reduce investment, and harm innovation.  

Of course, re-introducing net neutrality won’t be easy.  It will be strongly opposed by ISPs all the way to the Supreme Court leading to more years of uncertainty for the industry, and another potential reversal the next time a Republican becomes president.  Therefore, before madness ensues next year, we once again appeal to Congress to develop a middle ground for net neutrality.  Keep the rules prohibiting, blocking, throttling and paid prioritization of traffic, but please, don’t reimpose Title II regulations or an Internet conduct rule.  The Internet is not a utility and should not be regulated as if it were.