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The Federal Communications Commission has voted—once again—to assert its power to oversee and regulate the activities of the broadband industry in the United States. In a 3-2 vote, the agency reinstated net neutrality rules that had been abandoned during the height of the Trump administration’s deregulatory blitz.
“Broadband is now an essential service,” FCC chair Jessica Rosenworcel said Thursday in prepared remarks. “Essential services—the ones we count on in every aspect of modern life—have some basic oversight.”
The rules approved by the agency on Thursday will reclassify broadband services in the United States once more as “common carriers” under Title II of the Telecommunications Act, subjecting broadband to the same public-utilities-style scrutiny as telephone networks and cable TV.
That distinction means that the agency can prevent internet service providers from blocking or throttling legal content, or letting online services pay ISPs to prioritize their content with faster delivery speeds. But it’s difficult, particularly in an election year, to say whether net neutrality is here to stay or whether the FCC’s vote is just another inflection point in a regulatory forever-war.
“Net neutrality rules protect internet openness by prohibiting broadband providers from playing favorites with internet traffic,” Rosenworcel says. “We need broadband to reach 100 percent of us—and we need it fast, open, and fair.”
This reclassification was first attempted by the Obama administration following a lawsuit by Verizon in 2011; the ruling pointed to reclassification as a necessary hurdle in efforts to bring broadband under scope of the FCC’s oversight. The outcome of that case prompted the introduction of the Open Internet Order of 2015, which not only reclassified the industry in line with the court’s suggestion but imposed a slate of new rules with “net neutrality” serving as the FCC’s guiding philosophy.
Two years later, those rules were overturned by the Trump-appointed FCC chair at the time, Ajit Pai, a former Verizon lawyer. Back in the private sector now, Pai derided the FCC’s efforts this week as a “complete waste of time;” something, he said, “nobody actually cares about.”
The rules put forth under Rosenworcel are somewhat different than those previously introduced. Past FCC orders pursing net neutrality have been repeatedly challenged in court, giving the agency today a fair idea of which policies will be defensible in the onslaught of lawsuits definitely to come.
Though banning the creation of “pay-to-play internet fast lanes” remains a priority, the reasons for reclassifying broadband are not limited to warding off the industry’s well-documented predatory practices. The new order also gives the FCC the ability to more closely examine industry behavior; how, for instance, companies respond (or fail to) in the event of widespread network outages.
“Net neutrality” was not originally devised as a set of rules but rather as a principle by which regulators seek to strike a balance between the profit-motivated interests of megalithic broadband companies and the rights and welfare of consumers. It is often summed up simply as the practice of ensuring that “all internet, regardless of its source, must be treated the same.”
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While the Trump FCC asserted that it had no authority to regulate ISPs, it paradoxically claimed—in a failed effort—the power to crack down on states working to create regulation for themselves. Still, in 2018 California successfully banned broadband companies from engaging in a host of anti-consumer activities, from digital redlining and data discrimination to zero-rating schemes, which enable ISPs to funnel consumers toward particular websites or services by exempting them from arbitrary data caps.
Net neutrality advocates typically credit laws like California’s with preventing “virtually lawless” service providers from going haywire over the past half-decade. Industry associations offer a counter-history: Net neutrality protections must have been pointless all along, since the sky didn’t fall once they disappeared.
State-level protections, however, haven’t prevented cable and satellite TV companies from pushing a menu of anti-consumer policies nationally. The industry has threatened to hike monthly subscription prices if ever prevented from charging early-termination fees to customers locked into yearlong contracts. It has opposed rules proposed by the Federal Trade Commission designed to “make it at least as easy to cancel a subscription as it was to start it.”
Rosenworcel and other net neutrality proponents point to the growing reliance on broadband as successive generations of Americans increasingly eschew forms of communication that traditionally fell under the FCC’s blanket. Broadband is undeniably a telecommunications service today—even more so now than when the FCC first sought to adopt net neutrality as its guiding principle.
“Today's action brings back moderate rules that have already passed court muster and are essential building blocks for a consumer-friendly and citizen-friendly internet,” says Michael Copps, a former FCC commissioner. “Our communications technologies are evolving so swiftly, affecting so many important aspects of our individual lives, that they must be available to all of us on a nondiscriminatory basis.”
Consumer reliance on digital platforms and tools for communication is only increasing: Teenagers today notoriously loathe—some say fear!—talking on the phone, while the landscape of communications dynamics shifted violently for US workers in the post-pandemic era. Nevertheless, Americans today have little agency on their own to combat predatory-pricing schemes and lopsided usage restrictions. Consumer advocates note that Americans cannot simply vote with their wallets while locked into receiving services from a de facto monopoly.
While having evolved far past its original conceit, net neutrality is at heart a policy of "non-discrimination," as Tim Wu explained in the 2002 white paper coining the phrase.
“The point of the neutrality principle is not to interfere with the administration of the internet-protocol side of a broadband carrier’s network,” wrote Wu, then an associate professor at the University of Virginia Law School. “It is, rather, to prevent discrimination in that administration.”
