At MWC, FCC's Carr denounces net neutrality revival as 'a dead end'

LAS VEGAS – MWC23 – The 2023 edition of this conference sounded more like its 2017 self when FCC Commissioner Brendan Carr showed up to denounce yesterday's bid by FCC chair Jessica Rosenworcel to restore net neutrality regulations of Internet providers.

"We are jumping back into this regulatory hot tub time machine," Carr said after calling Rosenworcel's proposal "utility-style regulation of the Internet" – a frequent line of her predecessor as chair, Ajit Pai.

He invoked Pai again by describing the FCC's pre-2015 approach as a "bipartisan light-touch framework that had governed the Internet for 20 years," although DSL providers that benefited from Title II-mandated line sharing up until 2005 might balk at that revisionist recap.

(Pai, however, had not come up with a line quite like Carr's quip Wednesday: "I knew that the Internet had a lot of garbage on it, but I had never processed the thought that we would regulate it like a sewer pipe.")

A nothing-happened defense

Carr's basic critique of Rosenworcel's initiative also echoed Pai's defense of the FCC's 2017 party-line vote to scrap the rules it had adopted in another party-line vote two years earlier: When Internet providers were liberated from those regulations, they didn't use their newfound freedom to block sites, slow apps or strongarm content providers into signing up for paid-prioritization deals.

"We were told it was going to result in a slowdown of the Internet," Carr summed up what he characterized as "apocalyptic" predictions in the run up to the Pai-led elimination of net neutrality rules.

Nothing of the sort happened, he said, citing Ookla speedtest data that he said showed a 524% increase in broadband speeds from 2017 to today.

Not even the massive spike in residential broadband use caused by the COVID-19 pandemic slowed that rise, Carr continued.

"COVID-19 was the ultimate stress test of global telecom policy," he said. "Our networks kept on humming."

He compared that to the pleas of European telco regulators that streaming-video services reduce their resolution to avoid overloading broadband networks: "We should talk about the fact that it was America's Internet infrastructure that outperformed everyone else in the world."

Carr was not the only MWC speaker to ask if any bad behavior by ISPs existed to be quashed by Title II-based net neutrality rules. Verizon Business CEO Kyle Malady made the same point during a keynote appearance, saying "It's a theoretical problem that could happen, and we need to regulate it?"

Privacy gets passed by

But neither speaker noted that Rosenworcel herself barely evoked the specter of slower downloads in her speech Tuesday announcing her plan to revive net neutrality rules – a move that had been widely expected, given President Biden's early support for the idea.

Instead, the chair described Title II regulation as the only feasible way for the FCC to regulate other problems with broadband, such as extended outages and privacy violations by broadband providers.

A 2021 FTC report found that many ISPs it studied, now unconstrained by FCC oversight, "amass large pools of sensitive data" about their customers and provide them with "largely illusory" controls for that data collection.

Carr, however, did not discuss privacy at all in his talk, which may not bode well for a meaningful debate about the possible utility of Title II-based regulation.

He did acknowledge that with the recent Senate confirmation of Anna Gomez as the third Democratic appointee to the FCC, Rosenworcel should have the votes to get a net neutrality revival into the NPRM phase.

"I'm disappointed though not surprised that we're going to be heading down this path," Carr said – but then added that it won't make a difference anyway when the Supreme Court overturns such a decision under its newfound "major questions" doctrine.

"There's been a sea change in the law since the last time the FCC did this," Carr said, citing a study posted earlier this month by former Obama solicitors general Donald B. Verrilli, Jr. and Ian Heath Gershengorn that called an FCC U-turn on net neutrality "folly."

"Ultimately, we're going to run into a dead end and get reversed by the courts," Carr predicted.

(Two major telecom lobbies that oppose net neutrality regulation, USTelecom and NCTA, paid for that report, but Carr did not mention that financial support.)  

A plea for more spectrum

Carr closed with an almost certainly futile plea for the FCC to set aside dreams of a renewal of net neutrality – as he put it, "a solution that won't work for a problem that doesn't exist" – and instead focus on freeing up more spectrum.

"Right now we're in a very serious spectrum deficit," Carr said. "We have slowed down. We're stalling out."

He called for prompt FCC action to make more midband spectrum available: "We should be adding some more spectrum bands," he said, name-checking 4, 7 and 8GHz and critiquing the volume of midband spectrum still held by the federal government.

And on that, Carr can probably get some bipartisan agreement at the FCC. The other commissioner to speak at MWC, Democratic appointee Geoffrey Starks, used a far more mild-mannered speech Tuesday to urge Congress to help the FCC's spectrum cause by renewing the auction authority that had lapsed in March.

Said Carr: "We're going to keep working together, and hopefully spectrum is one area where we can turn the corner."