Net neutrality is about to make a comeback

The Federal Communications Commission is set to vote to restore net neutrality on Thursday in the latest volley of a yearslong game of political ping-pong.

The commission is expected to reclassify internet service providers (ISPs) — e.g., broadband companies like AT&T and Comcast — as common carriers under Title II of the Communications Act. That classification would open ISPs up to greater oversight by the FCC. The vote is widely expected to go in favor of reinstating net neutrality since FCC Chair Jessica Rosenworcel, a Democrat, controls the agency’s agenda. Rosenworcel moved forward with the measure after a fifth commissioner was sworn in, restoring a Democratic majority on the panel. (Disclosure: Comcast is an investor in Vox Media, The Verge’s parent company.)

Net neutrality proponents say that oversight can help ensure fair access to an open internet by upholding principles like no blocking or throttling of internet traffic. Opponents, including industry players, fear it could halt innovation and subject ISPs to onerous price regulations. 

Here’s how we got here: the last time the FCC imposed net neutrality rules was in 2015, after a long fight and a loud campaign of grassroots support. In 2017, Trump-appointed FCC Chair Ajit Pai led the successful effort to repeal the rules. President Joe Biden has made clear his intention to bring back net neutrality through his competition executive order, but that effort was delayed by a protracted battle over his initial nominee for a commissioner, leaving the agency without the votes to bring back the rules until late last year. 

This time around, net neutrality is no longer the biggest tech policy issue on many Americans’ minds. The vote comes just a day after Biden signed a law to force TikTok to separate from its China-based parent company or face a ban and on the heels of a new comprehensive data privacy proposal backed by two powerful sponsors. But net neutrality has remained a goal for many progressives who see it as table stakes for an open internet. 

The rules aren’t substantially different from 2015 — courts largely upheld the framework, so the FCC is sticking to what it’s sure is legal. But the rhetoric around the rules has changed. Net neutrality opponents say the lack of fallout after the repeal shows the rules were never needed; advocates argue that state laws kept some of their greatest fears in check in the absence of federal rules. The pandemic and current political tensions about foreign adversaries have also tinged how the FCC talks about net neutrality: the agency is focusing on how the rules could give it insight into internet outages, as well as authority over national security issues with broadband equipment. 

For example, Rosenworcel has pointed to what she calls a “loophole” in the agency’s authority to limit foreign-controlled broadband providers over national security concerns, even though the agency is able to take action against other areas of their telecommunications infrastructure. Industry opponents see this as a new tactic to reinstate old rules. “The FCC, realizing that it has lost the argument about blocking or throttling, no anticompetitive paid prioritization, has been grasping for new justifications, like saying it is now cybersecurity that drives our interest in imposing these ancient laws monitoring the internet,” said Jonathan Spalter, president and CEO of broadband industry group USTelecom.

Opponents fear that reclassifying broadband providers as common carriers will eventually let the FCC control pricing, which they worry will disincentivize innovation. But the FCC says it will forebear its rate regulation authority as part of the proposal. While a future FCC could undo that, according to Public Knowledge legal director John Bergmayer, it would take a new lengthy regulatory process to do so. “It puts a speed bump in the way of a future FCC,” Bergmayer said. “And it sort of signals the intent for what the scope of net neutrality rules are supposed to be.”

That’s still not enough to assuage opponents. Spalter conceded that “it’s a good step that the FCC is moving to forbear on rate regulation,” but he also added, “we need to trust but verify.”

“Rate regulation is susceptible to all kinds of mission creep and can take various forms,” said Spalter. He’d prefer Congress take up the underlying principles of net neutrality to ensure web traffic can’t be blocked or throttled unfairly. He also says that it’s misguided to focus on broadband companies that made large investments throughout the pandemic to keep Americans connected to the internet. 

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“It was just two and a half years ago that we stood together — the White House, Congress, industry, consumers — to move forward toward progress in connecting everyone everywhere,” Spalter said. But there’s “nothing about Title II that advances that shared objective. In fact, it undermines it. And for what? Outside of Big Tech, which isn’t even covered in this rulemaking, when was the last time you heard about a net neutrality violation?”

Industry opponents often point to the relatively quiet years of the post-net neutrality era as evidence that the most extreme predictions about its repeal were overblown. “There’s no actual open internet problem,” said Spalter. “And regulating an industry which is on the cusp of working with our government and the states to bring internet everywhere finally could really jeopardize that critical and bipartisan goal by creating regulatory overhang, disincentivizing investment.”

But those in favor of federal net neutrality rules say state laws — like California’s net neutrality rules — helped keep the worst behaviors at bay. “If you think that nothing has happened since the FCC retreated from net neutrality and are asking yourself what is the big deal, think again. Then look harder,” Rosenworcel said in a speech at the National Press Club last year. “Because when the FCC stepped back from having these policies in place, the court said states could step in … So in effect, we have open internet policies that providers are abiding by right now — they are just coming from Sacramento and places like it.”

Bergmayer said the fact that there’s less fanfare around this net neutrality vote reflects a recognition that net neutrality is just the start of the fight for internet policies. “People are realizing now that just having free and open broadband networks isn’t really the end of the game. There’s lots of other gatekeepers on the internet,” Bergmayer said. “It just means that net neutrality is not the only fight to have on behalf of consumers.”

It’s, of course, possible that a new administration will once again flip the switch, and the political ping-pong could volley right back under a new administration. But Bergmayer hopes for some stability. “I think there’s this misapprehension that people like me, who’ve been working on net neutrality my whole career, that we just love the game. It’s like, no, I love winning,” Bergmayer said. “I’m looking forward to winning net neutrality, having those rules in place, and then moving on to other stuff.”