FCC begins second quest for net neutrality

The Federal Communications Commission officially began its effort to reestablish net neutrality at its monthly meeting today, with a proposed rule prohibiting broadband providers from favoring or throttling certain internet traffic. While it still faces a legal and political battle, the new rule benefits from eight years of hindsight.

In its meeting today, the FCC voted 3:2 to put the Notice of Proposed Rulemaking (or NPRM) up for public comment, after which it will go up for another vote in several months’ time.

“Safeguarding and Securing the Open Internet” is based on 2015’s Open Internet Order, which classifies broadband as a “Title II” communication service, a distinction that has been debated for decades but ultimately makes perfect sense.

For a full history of how these concepts developed and resulted in net neutrality rules, this article takes you from the ’60s to 2015’s order. But the short version is this: internet providers are meant to act as pipes for data the same way phone companies do for calls. Of course this distinction has become more complex, but the legal and expert consensus is that broadband should be regulated like a telecom rather than a tech company — like AT&T rather than Microsoft.

However, because it expands the reach of regulators when it comes to the lucrative business, opponents decry it as government control of the internet — which it most certainly is not. The Trump era was one of alarming deregulation across many industries, including broadband, and his appointed FCC Chairman, Ajit Pai, made it his mission to overturn net neutrality.

Now Chairwoman Jessica Rosenworcel is in charge, and the Senate has finally confirmed the fifth Commissioner — welcome, Anna Gomez — meaning the pro-net-neutrality faction of the agency is able to restore the rules. Yes, the back-and-forth is a bit embarrassing, but mostly for opponents of net neutrality, who have repeatedly had their arguments and methods discredited. And Rosenworcel certainly has had one clear stance as long as she’s been in the business.

“As long as I have served on the FCC, I have supported net neutrality,” she said in remarks at the meeting. “But in 2017, despite overwhelming opposition, the FCC repealed net neutrality and stepped away from its Title II authority over broadband. This decision put 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 a process to make this right.”

The basic argument against net neutrality is that the internet ain’t broke, so don’t fix it, especially not by reclassifying it in a way that could change a great deal, resulting in more and worse government interference. The basic argument in favor of it is that, fundamentally speaking, broadband is a communications service that the Federal Communications Commission should regulate, resulting in more and better consumer protections.

A simple example of this divergence is what’s called zero rating. Comcast or T-Mobile can offer (and have) features like “Netflix doesn’t count towards your bandwidth cap.” Great! But they’re not doing it out of the goodness of their hearts — that’s a sweetheart deal with Netflix that disadvantages competitors. Should that be allowed? Maybe, maybe not.

But by the same principle, providers could (and do) throttle other streaming sites unless you pay a fee or opt out. Suddenly the dark side of allowing broadband providers to set their own rules becomes obvious. (Comcast disputes that its Steam TV offering counted as zero rating, but the FCC investigation was abandoned when Pai took over, so no conclusions were reached.)

Those against net neutrality say these deals are what consumers want and the market will figure it out. Those for it say that it’s a sugar-coated poison pill — first the zero rating, then the backroom deals that limit choice further.

Rosenworcel pointed out another area where the FCC is insensibly hamstrung by current rules:

The law requires telecommunications providers to protect the confidentiality of the proprietary information of their customers. That means that these providers cannot sell your location data, among other sensitive information. Those privacy protections currently extend to voice customers but not broadband subscribers. Does that really make sense? Do we want our broadband providers selling what we do online? Scraping our service for a payday from new artificial intelligence models? Doing any of this without our permission?

A dozen states have adopted net neutrality rules since 2017, she points out, the kind of patchwork of rules that industries always claim to abhor. Well, here are those national, bright-line rules you asked for.

“One of the reasons I firmly support today’s Notice is because it proposes to return us to our roots,” said Commissioner Geoffrey Starks. “A framework that has governed the internet’s growth going back to 1998, through Republican and Democratic Administrations alike, when the Commission first classified DSL broadband as a common-carrier service and went on to adopt principles to ensure broadband networks are widely deployed, open, affordable and accessible to all consumers.”

Interestingly, Starks notes that “over the more than 20 years of courts reviewing this exact question, every single judge to take a position on the correct classification of broadband has concluded that it very obviously is a common-carrier service. Three Supreme Court justices explicitly stated the answer was ‘perfectly clear.’ ”

But that’s not completely true, in my recollection. One judge offered a very different, and very wrong, interpretation of the communications service/information service question: Brett Kavanaugh, now a Supreme Court Justice. His take, however, was spectacularly annihilated by another judge, who patiently explained in a very readable response why broadband is very much telecommunications.

The more detailed arguments will surely be laid out in detail over the next few months, as the rulemaking process proceeds, and likely over the next few years as the inevitable legal challenges appear.

You may recall that the public comment period for net neutrality nearly broke the system, and later the reversal comment period was an embarrassment: millions of comments were fake or cooked up by telecom lobbyist firms. The FCC has since improved its comment process, but we can probably expect similar shenanigans to come. You can check out the comments and leave your own here.