Net neutrality is back on the menu, citizens. After a very, very long battle that ended in eventual defeat during the Trump presidency, the FCC is set to reinstate rules that broadband providers must treat all traffic equally, without offering preferential treatment to business partners or their own services.
The effort to revive this popular government was announced in a speech at the National Press Club by FCC Chairwoman Jessica Rosenworcel, who was one of the champions of the original rule more than a decade ago.
Rosenworcel stated that broadband “is not a luxury, it is a necessity,” adding: “It is essential infrastructure for modern life. No one without it has a fair chance at success in the 21st century. We need broadband to reach 100% of us and it must be fast, open and fair.”
In a shared online fact sheetRosenworcel said the FCC “seeks to largely return to the successful rules the Commission adopted in 2015,” which would classify broadband as essential on par with water, power and phone service.
As a quick refresher, net neutrality is the principle by which Internet providers (mobile or “fixed,” such as fiber) should act as simple data conduits, without performing any analysis or prioritization beyond what is necessary to guarantee good service. Some data must take priority because of the way networks work, of course, but it would be wrong (and illegal under net neutrality) for, say, Comcast to throttle its competitors’ streaming services while giving an advantage to theirs.
Although such egregious behavior wasn’t particularly common, it had occurred, and non-neutral practices were gaining ground, rebranded as “zero rating,” apparently a special deal for consumers where some streaming services didn’t count toward bandwidth caps. .
The FCC passed net neutrality rules in 2015, and the idea that the companies we pay for bandwidth should have nothing to do with what we use that bandwidth for was extremely popular (especially since this is probably was the lowest point for broadband companies in terms of public opinion). . But other parties were not so pleased with what they perceived as regulatory overreach.
But with the 2016 election came (as expected) new leadership for the FCC. Tom Wheeler, one of the architects of the net neutrality rule, handed over the presidency to Ajit Pai, who made no secret of his intention to make its repeal a priority.
And he repealed it, using legal logic that was extremely spurious, leading the drafters of the law he cited to object to his interpretation of it. But the deed was done.
Since then, some states have attempted to include net neutrality rules and some national laws have also been proposed. But ultimately it seems to have been recognized that this is a matter for the FCC to decide, as it had done before.
Although Chairwoman Rosenworcel would almost certainly have liked to bring the matter before the Commission sooner, Republicans in the Senate have been deadlocked for years on approving a fifth commissioner. This left the balance of power equal to two per party, dooming any supposedly partisan regulations such as net neutrality to failure. But with Anna Gómez being sworn in as fifth just today, that obstacle is eliminated.
Senators Ed Markey and Ron Wyden have already expressed their support for this effort:
The broadband and mobile industries are likely to cry loudly that in the absence of net neutrality rules, there have been no serious breaches of the principle. But the best explanation for this is that these companies considered themselves to be on probation after the 2015 order, which, given the weak legal work that overturned it, they knew had to change again.
Now Rosenworcel, likely armed with an improved order that addresses any loose threads dangling from the latter, is in a fair position to establish net neutrality on a more permanent basis. There will be some discomfort from the dissident Commissioners: Carr already dropped a previous dispute over the plan before Rosenworcel’s comments. And perhaps some outrage from the political right, which may, as it has before, present this (like other FCC privacy and liability initiatives) as an infringement on the free speech rights of corporations. Unfortunately, the judge who made that decision, Brett Kavanaugh, is now a Supreme Court justice. So we may very well see net neutrality make its way to that high court, where it may take a second legal beating.
