How the FCC Can Safeguard Broadband Affordability Initiatives Without Rate Regulation

On April 25, the Federal Communications Commission will vote to reinstate the net neutrality rules and resume real regulatory oversight over broadband. It is critical that the text of this reinstated regulatory framework does not inadvertently undermine its own objectives in regards to broadband affordability. The draft text of the 2024 “Safeguarding and Securing the Open Internet” Order is primarily concerned with the mechanics of reclassifying broadband as a Title II service and the regulations we’ve come to associate with net neutrality—prohibiting blocking, throttling, and paid prioritization. These actions are essential to ensuring the internet is an open space for commerce, innovation, and speech. The draft Order also distances itself from “rate regulation.” In the days of the monopoly telephone system, the FCC and state regulators reviewed and approved the rates that phone companies could charge, and the FCC has decided to “forbear from” any of the statutory provisions that would give it the authority to do this in the broadband context. Thats fine, but there are some potential ambiguities in the draft Order. First, “rate regulation” has a specific meaning, but broadband providers have taken to labeling almost any form of regulation they don’t like as “rate regulation.” Second, the FCC’s stance towards state laws that do not conflict with, but are different than, its own policies could be clarified, especially in this area. Industry advocates and their champions in Congress have consistently weaponized overly broad interpretations of “rate regulation” as a cudgel against affordability programs and requirements, and it's critical that the FCC clarify that forbearance from “rate regulation” does not impede the authority of the agency itself, state agencies, or other federal agencies to require providers to offer discounted affordability programs for qualifying subscribers.