The Federal Communications Commission officially kicked off its efforts to reestablish net neutrality at its monthly meeting today, proposing a rule that would prohibit broadband providers from favoring or throttling certain internet traffic. While the new rules will still face legal and political battles, they benefit from eight years of experience and lessons learned. At today's meeting, the FCC voted 3-2 to approve a Notice of Proposed Rulemaking (NPRM) for public comment before another vote in a few months.
Safeguarding and Securing an Open Internet is based on the 2015 Open Internet Act, which classifies broadband as a "Chapter 2" communications service, a distinction that has been debated for decades.
For a complete history of how these concepts developed and ultimately formed the net neutrality rules, this article will take you from the 1960s to the 2015 statute. But in short: Internet providers should act only as data conduits, like phone companies. Of course, the distinction has become more complicated, but the legal and expert consensus is that broadband should be regulated like a telecom company rather than a tech company, like AT&T instead of Microsoft.
However, because the bill expands the reach of regulators when it comes to lucrative businesses, opponents dismiss it as government control of the internet — which it certainly is not. The Trump era has seen worrisome deregulation in many industries, including broadband, and his appointed FCC chairman Ajit Pai has made it his mission to overturn net neutrality.
Now that Chairman Jessica Rosenworcel is in charge, the Senate has finally confirmed a fifth commissioner — welcoming Anna Gomez — meaning the pro-net neutrality wing of the agency can restore net neutrality rules. Yes, this back-and-forth debate is a bit embarrassing, but mostly for opponents of net neutrality, whose arguments and methods have been repeatedly questioned. And Rosenworcel certainly had a clear position during his tenure.
"I have supported net neutrality as long as I have served at the FCC," she said during a speech at the meeting. "But in 2017, the FCC repealed net neutrality and relinquished Title II jurisdiction over broadband, despite overwhelming opposition. This decision placed the agency on the wrong side of history, the wrong side of the law, and the wrong side of the American public. Today, we begin the process of righting that wrong."
The basic argument against net neutrality is that the internet isn't broken, so don't fix it, especially not by reclassifying it in a way that could change a lot, leading to more and worse government intervention. The basic argument for this view is that, fundamentally, broadband is a communications service and the FCC should regulate it to provide more and better protections for consumers.
A simple example of this divergence is the so-called zero rating. Comcast or T-Mobile could offer (and have) a feature like "Netflix doesn't count against your bandwidth cap." very good! But they didn’t do this out of good intentions, but instead struck a favorable deal with Netflix that was detrimental to their competitors. Should this be allowed? Maybe, maybe not. But by the same principle, service providers can (and do) choke other streaming sites unless you pay a fee or opt out. The dark side of allowing broadband providers to make their own rules suddenly became apparent.
Opponents of net neutrality say these deals are what consumers want and the market will take care of everything. Supporters of net neutrality say it's a sugar-coated poison pill -- first a zero rating, then a backroom deal to further limit choice.
Rosenworcel pointed to another way in which the FCC is constrained by existing rules.
Telecommunications carriers are required by law to protect the confidentiality of customers' proprietary information. This means these vendors cannot sell your location data and other sensitive information. Currently, these privacy protections apply to voice customers but not broadband users. Is this really reasonable? Do we want our broadband providers to sell what we do online? Get our services from new artificial intelligence models? Doing these things without our permission?
She noted that more than a dozen states have passed net neutrality rules since 2017, which are exactly the kind of patchwork rules that industries have been claiming to abhor. Well, that's the nationwide bright line rule you're asking for.
Commissioner Brandon Starks said:
One of the reasons I strongly support today's Notice is that it proposes to return us to our roots, the framework that has governed the growth of the Internet, dating back to 1998, through both Republican and Democratic administrations, when the Commission first classified DSL broadband as a common carrier service and, in turn, adopted principles to ensure that broadband networks are widely deployed, open, affordable, and accessible to all consumers.
Interestingly, Starks noted, "In the more than 20 years that the courts have examined this issue, every justice has held that broadband is clearly a common-carrier service. Three Supreme Court justices have made clear that the answer is 'couldn't be clearer.'"
However, there is also a judge who gave a completely different interpretation of the communication services/information services issue, and it was a very wrong interpretation: he is the current Supreme Court Justice Brett Kavanaugh (Brett Kavanaugh). However, his point was hammered home by another judge, who patiently explained why broadband was very much a telecommunications business.
More detailed arguments are sure to be elaborated in the coming months as the rulemaking process proceeds, and they are likely to be elaborated in the coming years as inevitable legal challenges arise.
You may recall that the public comment period on net neutrality nearly brought the entire system to its knees, and the subsequent revocation of the comment period was even more embarrassing: millions of comments were forged or concocted by telecom lobbying firms. The FCC has since improved its comment procedures, but we can probably expect similar shenanigans to come.