The net neutrality fight isn’t over. Here’s what you need to know

The final step of the repeal of the Obama-era net neutrality rules is near. 


Sarah Tew/Techhnews

The fight over net neutrality doesn’t die. It just changes over time.

The Obama era rules for the open internet proved short-lived, lasting briefly from 2015 to 2018. But the battle rages in the courts as supporters challenge the repeal of the rules and the Federal Communications Commission challenges states that are passing their own net neutrality rules.

Many people agree with the basic principle of net neutrality – the idea that all traffic on the internet should be treated equally – but plans for realizing that uncontroversial concept have been a lightning rod for conflict. Behind the clash: The former, Democrat-led FCC reclassified broadband networks so that they were subject to the same strict regulations that govern telephone networks. Supporters claim that was necessary for establishing the legal basis of the rules. But it provoked a backlash from Republicans, who said the move was clumsy and blunt.

On June 11, the Obama Era rules went away. FCC Chairman Ajit Pai, appointed by President Donald Trump, had called those rules “heavy-handed” and “a mistake,” and he’s argued that they deterred innovation and depressed investment in building and expanding broadband networks. (Read his op-ed on Techhnews here .) Hr took the FCC back to a “light touch” approach to regulation, pleasing both Republicans and internet service providers.

Supporters of net neutrality say the internet as we know it may not exist much longer without the protections. Big tech companies, such as Google and Facebook, and internet luminaries, such as Tim Berners-Lee, fall in that camp.

“We need a referee on the field who can throw a flag,” former FCC Chairman and Obama appointee Tom Wheeler said at MIT during a panel discussion in support of rules like those he championed. Wheeler was chairman when the original net neutrality rules passed. (You can read his op-ed in Techhnews regarding internet privacy here. )

Even in death, the FCC’s net neutrality rules continue to make news.

If you still don’t feel like you understand what all the hubbub is about, have no fear.  We’ve assembled this FAQ to put everything in plain English.

What’s net neutrality again?

Net neutrality is the principle that all traffic on the internet should be treated equally, regardless of whether you’re checking Facebook, posting pictures to Instagram or streaming movies from Netflix or Amazon. It also means companies like AT&T, which is trying to buy Time Warner, or Comcast, which owns NBC Universal, can’t favor their own content over a competitor’s.

What were the rules?

Under the Obama administration, the FCC adopted rules in 2015 to protect these principles. The regulation prohibited broadband providers from blocking or slowing traffic and banned them from offering so-called fast lanes to companies willing to pay extra to reach consumers more quickly than competitors. To make sure the rules stood up to court challenges, the agency also put broadband in the same legal classification as the old-style telephone network, which gave the agency more power to regulate it.

Internet providers said the rules stifled investment, especially the new classification of broadband, which they feared would allow the government to set rates.

Commentary by FCC Chairman Ajit Pai: Our job is to protect a free and open internet

Were the 2015 rules ever challenged in court?

As a matter of fact they were. AT&T as well as a couple of industry groups sued the government arguing the FCC didn’t have the authority to reclassify broadband. But in 2016, the DC Circuit Court of Appeals upheld the rules, dealing the FCC a significant victory. The ruling essentially made it clear that the FCC could regulate broadband. AT&T tried to appeal the decision to the US Supreme Court. And President Trump’s Department of Justice urged the court to take the case. But ultimately, the high court rejected the appeal. And that 2016 ruling stands.

What happened to the 2015 rules?

The FCC, led by Ajit Pai, voted on Dec. 14 to repeal the 2015 net neutrality regulations. And in June the rules officially came off the books. This means that today there are not rules that prevent broadband providers from slowing or blocking your access to the internet. And there’s nothing to stop these companies from favoring their own services over a competitor’s service.

But one of the most significant changes that’s often overlooked is that the FCC’s “Restoring Internet Freedom” order also stripped away the FCC’s authority to regulate broadband and instead handed that authority to the Federal Trade Commission.

Does this mean no one will police the internet?

The FTC will be the new cop on the beat. It can take action against companies that violate contracts with consumers or that participate in anticompetitive and fraudulent activity.

Is the FTC equipped to make sure broadband companies don’t harm consumers?

The FTC already oversees consumer protection and competition for the whole economy. But this also means the agency is swamped. And because the FTC isn’t focused exclusively on the telecommunications sector, some experts argue that the agency isn’t able to deliver the same kind of  scrutiny the FCC would.

More importantly, the FTC also lacks the FCC’s rule-making authority. This means FTC enforcement extends only to companies’ voluntary public commitments or to violations of antitrust law. Unless broadband and wireless carriers commit in writing to basic net neutrality principles, the FTC can only enforce antitrust issues, which must meet a high legal standard.

Also, any action the FTC takes happens after the fact. And investigations of wrongdoing can take years.

What about internet fast lanes?

The repeal of FCC net neutrality regulations removes the ban that keeps a service provider from charging an internet service, like Netflix or YouTube, a fee for delivering its service faster to customers than competitors can. Net neutrality supporters argue that this especially hurts startups, which can’t afford such fees.  

But Pai said the ban on paid priority was too restrictive. He wanted to make sure broadband companies could experiment with different business models, such as offering more zero-rated deals, which allow companies to give away content for free without it counting against a customer’s monthly data cap. Another potential business model would let a broadband provider give priority to a medical application or to services like those enabling self-driving cars.

Are any of the old rules still in place?

The one rule that was spared is the so-called “transparency rule,” which requires broadband providers to disclose how they manage their networks. The FCC now requires service providers to commit to disclosing when and under what circumstances they block or slow traffic and to disclose if and when they offer paid priority services.

What are the states doing?

Attorneys general in 22 states and the District of Columbia have joined pro net neutrality consumer groups and Firefox publisher Mozilla in suing the FCC in federal court to reverse the FCC’s move.

There are also a number of states, such as California and Washington, which have passed their own laws governing an open internet, after the FCC. Several other states, like New York are considering similar legislation.

California’s law is based on the 2015 protections, but it goes further. It also outlaws some zero-rating offers, such as AT&T’s offer, which exempts its own streaming services from its wireless customers’ data caps. The law also applies the net neutrality rules to so-called “interconnection” deals between network operators, something the FCC’s 2015 rules didn’t explicitly do.

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Many states think they can. California officials argue that since the FCC has refused to regulate broadband and because the agency actually abdicated its authority for such regulation to the FTC that they can impose their own rules for services delivered in their states.

But the Trump Administration disagrees. As part of its roll-back of net neutrality, the FCC included a provision in its order that pre-empted states from creating their own regulations. The Department of Justice and the broadband industry argue it would be too complicated for internet service providers to follow different net neutrality rules in 50 states.

Immediately, after California’s governor signed net neutrality into law, the Trump DOJ filed a lawsuit arguing the law violates the Commerce Clause of the US Constitution.

“Under the Constitution, states do not regulate interstate commerce — the federal government does,” US Attorney General Jeff Sessions said in a statement.

Several industry groups are also suing California over the new law making a similar argument.

What about the FCC’s comment system? I’ve heard there were issues. What’s that all about?

More than 22 million comments were filed with the FCC when the agency was considering repealing the 2015 rules. That was a record. But analysis of the comments showed that an overwhelming number of them were duplicates or submitted by automated bots.

An analysis found that two million of those 22 million comments submitted used stolen identities, including some who were dead, like actress Patty Duke, who died in 2016. Nearly 8 million comments used email domains associated with FakeMailGenerator.com. About half a million were sent from Russian email addresses. And of the emails that came from legitimate email addresses, the vast majority were form letters originating from the same pro- and anti-net neutrality groups.

Then there was the controversy over a supposed cyberattack on the comment system that temporarily shut down the platform on exactly the same day thousands of net neutrality supporters responded to comedian John Oliver’s call to flood the agency with comments.

That “cyberattack” has been confirmed to be false, after more than a year of speculation. In August, the FCC’s inspector general reported the FCC had misled Congress and the public when it said the outage in May 2017 was the result of a DDoS attack. Instead the IG suggested the outage occurred because the agency hadn’t prepared its website for a flood of visitors.

What’s it all mean for me?

The repeal of the FCC’s net neutrality rules was a big change in policy. But for most people, their hasn’t really changed.

But over time, it could change significantly. Whether you think that change will be for the better or the worse depends on whom you believe.

Pai and many other Republicans say freeing up broadband providers from onerous and outdated regulation will let them invest more in their networks. Pai pointed to a report published in October by broadband trade group USTelecom that validates his policies by showing broadband spending increasing by $1.5 billion from 2016 to 2017.

Net neutrality argue that the FCC’s financial analysis is wrong. Democrats like Sen. Ed Markey of Massachusetts, consumer advocacy groups, civil rights organizations and technology companies like Google and Mozilla say that repealing the 2015 rules and stripping the FCC of its authority will lead to broadband companies controlling more of your internet experience.

This may lead to higher prices. Groups such as the American Civil Liberties Union also say it could affect your First Amendment right to free speech as big companies control more of what you experience online.

“Internet rights are civil rights,” said Jay Stanley, an ACLU senior policy analyst. “Gutting net neutrality will have a devastating effect on free speech online. Without it, gateway corporations like Comcast, Verizon and AT&T will have too much power to mess with the free flow of information.”

018-nyc-net-neutrality-protest-verizon-hq-dec-7-2017

Sarah Tew/Techhnews

What’s next?

Net neutrality supporters have filed lawsuits to reinstate the old rules. Several tech companies, including Vimeo, Mozilla, Kickstarter, Foursquare and Etsy, as well as several state attorneys general, have launched lawsuits against the FCC to preserve net neutrality rules.

They argue the FCC’s decision to change the classification of broadband and to get rid of the rules violates the Administrative Procedure Act, because it is “arbitrary and capricious.”

The DC Circuit will hear the case against the FCC, challenging the repeal of its 2015 rules. This is the same court that upheld challenges to the original rules in 2016. Final briefs in the case due Nov. 27. But the hasn’t yet set a date for oral argument or to announce the makeup of the three-judge panel that will hear the appeal.

In October, California struck a deal with the DOJ that it would not enforce its net neutrality law until the lawsuit in the DC Circuit, challenging the agency’s repeal, is resolved.

What is Congress doing?

Democrats in Congress are trying to reinstate the FCC’s rules through the Congressional Review Act. A CRA resolution passed the Senate in May and must pass the House of Representatives by the end of the year. If it passes both houses of Congress, it still has to be signed into law by President Donald Trump to officially turn back the repeal.

Democrats in Congress have tried to make net neutrality an issue in the midterm election, but it’s unclear how much of a factor this issue has played in an already heated election cycle.

If Democrats retake Congress, they could write laws protecting an open internet. But in this sharply partisan time, it’s unlikely Democrats and Republicans will come to a consensus.

Could an FCC controlled by Democrats reverse course?

Yes, if Democrats take control of the White House in 2020, a Democrat-led FCC could reinstate the rules. They’d have to go through the same rule-making process as last time. But everyone agrees that this ping-ponging between having rules and not having rules isn’t good for anyone. For this reason, people on both sides of the issue would like to see a permanent fix from Congress.

What can I do now?

Net neutrality supporters say the fight isn’t over yet. They’re calling on those who care about the issue to continue pushing state legislatures to pass their own net neutrality measures.

First published April 23 at 5 a.m. PT.

Correction, 11:33 a.m.: The headline and the story have been changed to reflect that key parts of the order to repeal net neutrality rules don’t go into effect until after the Office of Management and Budget gives its approval.

Updates, May 16 at 1:22 p.m.: Includes information on the Senate action on the Congressional Review Act.

June 9 at 5 a.m.: Adds background and reflects the June 11 end date of the Obama-era net neutrality rules.

June 11 at 5:15 a.m.: To note that the roll back has officially gone into effect.

Aug. 9 at 1:01 p.m.:  Adds information on the FCC IG’s report into a May 2017 outage of the agency’s website.

Nov. 6 at 12:03 p.m.: Adds information the lawsuits against the FCC and updates about the FCC’s comment record.

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