Could network neutrality finally get restored in the US? The FCC is moving a plan forward despite threats of legal action.
Network neutrality is a key pillar to a free and open internet. In essence, it prevents Internet Service Providers (ISPs) from abusing their market position to solely benefit their businesses at the expense of everyone else who uses the internet. Examples of this include throttling internet speeds of any service not closely affiliated with the ISP, zero rating affiliated services so that bandwidth used is unmetered for ISP sponsored services, blocking services for providing a competing product, and other obvious market abuses.
In short, it ensures that ISPs are only there to provide that access to the internet and not heavily skew the internet into the favour of those services associated with that ISP. They are there to provide the pipe that data flows through, not dictate who wins and loses in the free flow of internet ideas.
These days, such rules are more crucial than ever before. With vertical integration of ISPs and media companies, there are fewer and fewer players that provide any real competition in both the entertainment side of things such as traditional broadcasting. This over top of the fact that competition is sorely lacking in the world of cellular carrier services and ISPs. This is especially bad in Canada, but the US is no better with stories of some areas only having as little as one provider. If you thought being on the phone with Comcast was bad before, just wait until the full effects of network neutrality being wiped out kicks in and things get worse in all aspects.
This whole multi-year saga kicked off in 2017 when the Federal Communications Commission killed network neutrality clear back in 2017 with Trump appointed Ajit Pai heading it with his ridiculous Reese Peanut Butter Cup mug. Digital rights advocates, technology experts, and US citizens alike looked on in horror, knowing full well the disastrous implications of such a move. A key pillar of the internet was smashed with a sledge hammer under the lie that network neutrality was somehow a government takeover – whatever the heck that means.
In the years since, however, the effects didn’t come around. Supporters of the abolition of network neutrality insisted that this is because digital rights advocates and experts were all wrong and that it didn’t change anything. What’s more, they insisted that the internet is now free and open because of the repeal of network neutrality – even though the effect is the exact opposite.
So, why did the effects not actually happen? To put it simply: court action and the State of California. In 2018, California, in response to abolishing network neutrality, moved forward with state level network neutrality laws. The Trump era FCC was not happy with the move especially when the abolition of network neutrality came with stipulations banning states from passing their own version of network neutrality laws. It’s all part of the time honoured tradition of Republican’s cracking down on state rights, so that’s ultimately nothing new here.
With California thumbing its nose at those stipulations, American ISPs sued to stop those network neutrality rules being enforced. After all, taking over the internet for themselves would be a once in a lifetime opportunity and they were going to stop at nothing to make sure that they wrestle the internet out of the publics hands and take it for themselves. The ISPs asked the courts for an injunction to prevent those network neutrality rules from being enforced, but ultimately lost that bid in 2021. That was how we continued to enjoy network neutrality rules to this day.
The court process is, of course, ongoing. The California Network Neutrality laws were upheld in a 3-0 decision last year and the American ISPs have been struggling to appeal the decision ever since.
Of course, as we know, Donald Trump lost the previous election and Joe Biden was elected as the next president of the United States. American’s involved various tech sectors were breathing a sigh of relief because there was a vow to restore network neutrality. All that was needed was for the Biden administration to get the appropriate commissioners in place at the FCC so the US can get the ball rolling on undoing the damage caused by the Trump administration. So, internet advocates waited and waited and waited some more, hoping that the vacant seats can finally be filled.
For the longest time, Gigi Sohn was supposed to be the final nominee, but things kept getting delayed with her nomination. The delays were incredibly frustrating for digital rights advocates because the term wasn’t going to last forever. The delays ultimately meant that Sohn withdrew her bid, disappointing those who were hoping that the network neutrality file will finally be fixed.
In July, though, the Biden administration finally got a nomination through in the form of Anna Gomez. It was a process that took far too long by any reasonable measure, but we finally got that point in the process after years of dawdling, ISP lobbying, and partisan stupidity.
Moving on to the next step, the FCC began crafting the restoration of Network Neutrality. It was a very long overdue development and very welcome despite the fears that there won’t be enough time to see these rules enforced.
Today, reports are indicating that the plans are moving forward. From Reuters:
The U.S. Federal Communications Commission voted on Thursday to advance a proposal to reinstate landmark net neutrality rules and assume new regulatory oversight of broadband internet that was rescinded under former President Donald Trump.
The commission voted 3-2 on a proposal to reinstate open internet rules adopted in 2015 and reestablish the commission’s authority over broadband internet.
The FCC will take public comments before it is expected to vote next year to finalize the plan that is certain to face legal challenges.
Karl Bode on TechDirt noted that Republican’s and their ISP lobbyist pals are already gearing up to challenge the rules in court:
Yet in a new letter to the FCC written by 29 Republican members of Congress, the lawmakers proclaim that the FCC’s looming attempt to restore net neutrality is somehow “unlawful.”
Their reasoning? Because the corrupt right wing brunchlords at the Supreme Court could possibly defang some regulators via looming rulings in January, they think the FCC just, gosh, shouldn’t try to protect consumers or implement very popular policies:
“This proposal is unlawful. Regulation of broadband is undoubtedly a major question of economic and political significance. Under the major questions doctrine, articulated in West Virginia v. EPA, an agency must wait for Congressional authorization before acting. In other words, if broadband needs to be regulated as a utility, that is a decision for Congress to make, not the FCC. Congress has not spoken on this issue.”
This is an idea the telecom industry has been seeding in the press for a few weeks via assorted covert policy and lobbying proxies. But you’ll surely be surprised to learn the GOP lawmakers aren’t being honest.
Yes, the Supreme Court is poised to deliver the GOP its long desired killing blow to regulatory authority via two cases it will likely rule on in January. Those cases will take aim at a longstanding legal doctrine dubbed Chevron deference, which gives regulators the authority and latitude to make decisions for themselves, provided it’s generally within the authority given them by Congress.
If successful, the ruling would dramatically scale back the ability of regulators to make decisions for themselves and interpret statutes using their specific subject-matter expertise. The goal: to ensure regulators can’t do much of anything without the explicit approval of a Congress industry knows it lobbied into apathy and dysfunction decades earlier (it’s of course dressed up as something far more noble).
The goal has long been: zero meaningful oversight of corporate power. While it’s dressed up as serious adult policymaking and some noble deference to the sanctity of Congress and constitutional balance, it’s basically just part of the endless and wildly successful American quest for utterly unconstrained greed.
But here’s the thing: that ruling hasn’t happened yet. It’s still possible it doesn’t happen. Telecom policy gurus like Harold Feld have noted he’s not sure the Supreme Court has the votes, and even if it does, the FCC’s legal history should make it more resilient to the change than other regulators:
“One of the most important rulings relied upon by the courts regarding this doctrine is a 2005 case Gonzales v. Oregon, which blocked the Attorney General via the Drug Enforcement Agency from regulating doctors’ prescriptions under the public interest standard. In that ruling, the Court went out of its way to note that, while Congress delegated limited powers to the DEA, the FCC was an example of an agency that had far more expansive powers via its writ from Congress.
In other words, the court said that the FCC possesses a much stronger “Chevron deference,” a related legal standard that holds that when there’s ambiguity the courts should defer to the administrative bodies’ interpretation.”
The fight is important but complicated, ensuring it doesn’t see much traction among headlines about nonexistent billionaire fist fights. I’d highly recommend reading this American Prospect piece on how the telecom industry is seeding this stuff in a lazy press. I’d also recommend this post by the Natural Resources Defense Council or this piece over at Vox on the broader issues at play.
Another point to make is the fact that there are wider implications for people outside of the US as well. A lot of internet services people use comes from the US. If those smaller services are forced to go under because things collapsed for network neutrality, those services could very easily be toast.
More broadly, the death of network neutrality would embolden ISPs in other countries to claim that network neutrality is unnecessary and try to lobby other countries to do the same while holding up the United States as a shining example for the rest of the world to follow. From an international policy perspective, that is the most obvious next phase this process is going to take. We saw it when Australia passed that awful link tax law, so it is by no means a stretch to assume the same will eventually happen with anti-network neutrality efforts.
Back in the US, the situation should never have happened in the first place – let alone having the restoration process struggle to beat the next election to happen. We shouldn’t have to have hoped this, but we all hope that the new network neutrality rules are sound and come back, restoring what should never have been taken away in the first place.
Drew Wilson on Twitter: @icecube85 and Facebook.
