FCC plans to reinstate net neutrality

Net neutrality is making a comeback. After a protracted battle that culminated in a defeat during Trump’s presidency, the FCC is poised to reintroduce regulations requiring broadband providers to treat all traffic equally, without giving preferential treatment to business partners or their own services.

FCC Chairwoman Jessica Rosenworcel, an original champion of this rule over a decade ago, announced the effort to revive this widely supported principle in a speech at the National Press Club.

Rosenworcel emphasized that broadband is not a luxury, but a necessity, stating, “It is essential infrastructure for modern life. No one without it has a fair shot at 21st-century success. We need broadband to reach 100% of us, and it needs to be fast, open, and fair.”

In a fact sheet posted online, Rosenworcel explained that the FCC aims to largely revert to the successful rules adopted in 2015, which would categorize broadband as an essential service on par with water, power, and phone service.

As a quick reminder, net neutrality is the principle that internet providers—whether mobile or "fixed" like fiber—should function as simple conduits for data, refraining from any analysis or prioritization beyond what is necessary to ensure reliable service. While some data may need to be prioritized due to network functionality, it would be unjust (and against net neutrality principles) for companies like Comcast to throttle the streaming services of their competitors while giving their own an advantage.

While such extreme behavior was not particularly common, it did occur, and non-neutral practices gained traction under the guise of "zero rating," ostensibly offering consumers a special deal where certain streaming services did not count towards bandwidth limits.

The FCC established net neutrality rules in 2015, and the notion that the companies we pay for bandwidth should have no say in how we use that bandwidth was widely supported (especially as this was likely the nadir of public opinion for broadband companies). However, some parties viewed it as regulatory overreach.

But with the 2016 election came new FCC leadership, as expected. Tom Wheeler, one of the architects of the net neutrality rule, handed over the chairmanship to Ajit Pai, who made no secret of his intention to prioritize its overturning.

And overturn it he did, using legal reasoning that was highly questionable, prompting the authors of the law he cited to object to his interpretation. Nevertheless, the deed was done.

Since then, a few states have tried to implement net neutrality rules, and some national laws have been proposed. Ultimately, it seems to have been recognized as a matter for the FCC to decide, as it had done before.

Although Chairwoman Rosenworcel likely would have preferred to bring this matter before the Commission earlier, Republican Senators had stalled for years on approving a fifth commissioner. This left the power balance evenly split, dooming any allegedly partisan rulemaking like net neutrality. With Anna Gomez now sworn in as the fifth commissioner, this obstacle has been removed.

Senators Ed Markey and Ron Wyden have already expressed their support for this initiative.

The broadband and mobile industries will likely argue loudly that there has been no serious breach of the net neutrality principle in the absence of rules. However, a more plausible explanation is that these companies considered themselves on probation following the 2015 order, knowing that it would likely come around again given the shaky legal basis for its overturning.

Now, armed with an improved order that addresses any remaining concerns from the previous one, Rosenworcel is well-positioned to establish net neutrality in a more enduring manner. There may be dissenting voices among the Commissioners—Carr has already voiced objections to the plan ahead of Rosenworcel’s remarks. There may also be some form of outcry from the political right, which may, as it did before, frame this (along with other initiatives on privacy and accountability from the FCC) 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 ascend to that high court, where it may face another legal challenge.

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