Net Neutrality Is Back! For Now.

The FCC on Thursday once again voted along party lines to restore popular net neutrality rules stripped away during the Trump administration in a flurry of protest and sleazy industry behavior.

You might recall the 2017 repeal was so unpopular that telecom giants were caught using fake and dead people to create the illusion of public support. The Trump FCC was also caught making up a DDOS attack to explain away public outrage. And the repeal was a flurry of debunked lies, such as the claim that net neutrality would “stifle broadband investment” and represented “draconian government overreach.”

While years of disinformation from the GOP and telecom industry have muddied the water, the fairly modest rules are a stopgap effort to prevent telecom giants from abusing their regional market power and dominance of the broadband market to hamper competition and abuse consumers.

Under the rules your ISP can’t block you from accessing the service of your choice, or charge a startup extra money if they want to receive the same network priority as a giant company. These are basic protections ensuring the internet remains relatively open (assuming the FCC enforces the rules) and driven by decades of big ISPs (like AT&T and Comcast) trying to tilt the playing field in their favor.

“These net neutrality policies ensured you can go where you want and do what you want
online without your broadband provider making choices for you,” FCC boss Jessica Rosenworcel said in a statement. “They made clear your broadband provider should not have the right to block websites, slow services, or censor online content.”

While broadband providers have already started whining about the rules and threatened to sue, privately (just like last time) broadband industry executives doubt the rules will have any meaningful impact on their businesses. The rules aren’t onerous, won’t likely be enforced with any consistency, and big companies like AT&T and Comcast have never, ever really had to worry about serious FCC penalties for any of their various predatory, anti-competitive, or illegal behaviors.

What big ISPS are mostly worried about is that if you allow fairly tepid basic regulatory oversight, it could escalate more significantly into meaningful antitrust enforcement and rate regulation, neither of which they’ve ever actually had to worry about given widespread corruption and regulatory capture. That they might someday experience real accountability is something they enjoy whining about anyway.

Net neutrality experts like Stanford professor Barbara van Schewick had expressed concerns that the new rules were somewhat weaker than the original. She was particularly concerned that the rules opened the door to allowing ISPs to charge consumers extra if they wanted particular apps and services to operate in priority fast lanes, opening the door to anti-competitive behavior.

She and other telecom policy lawyers are still dissecting the final order, so it’s not yet clear if those concerns have been addressed (I’ll write a follow up post on loopholes once legal experts have had some time to digest the legal fine print).

In a statement, FCC official Brendan Carr (R, AT&T), made it abundantly clear that Republicans hope the Supreme Court’s looming plan to lobotomize what’s left of the federal regulatory state (see: Chevron) boxes the FCC in and prevents them from being able to protect consumers and open markets. Though legal precedent may protect the FCC more broadly than other agencies when that hammer finally falls.

I tend to think the Rosenworcel FCC knows they needed to pass these rules to be in the good graces of critics and consumers, but will be happy to have this political hot potato in the rear view mirror. I doubt the rules will ever be meaningfully enforced, though the broader Title II authority under the Telecom Act that the ruling restores will certainly help the agency’s consumer protection efforts on other fronts.

Public Knowledge Legal Director John Bergmayer tells Ars Technica ISPs will still try to push their luck in terms of tilting the playing field and nickel and diming consumers, and it’s important that the FCC remains diligent in enforcing the rules:

“Broadband providers will continue attempting to re-brand their old plans for internet fast and slow lanes, hoping to sneak them through. The FCC will need to diligently enforce its rules, including clarifying that discrimination in favor of certain apps or categories of traffic “impairs” and “degrades” traffic that is left in the slow lane, and that broadband providers cannot simply take apps that people use on the Internet every day and package them as a separate “non-broadband” service.”

It’s possible the Rosenworcel FCC, staffed with the kind of careerist revolving door folks who aren’t particularly interested in protracted political fights with deep-pocketed campaign contributors, doesn’t really enforce the rules. And the Trump FCC in a second Trump term would at best not enforce them and at worst turn around and eliminate them all over again.

This kind of policy patty cake could be addressed if Congress would just pass a net neutrality law, but just like consumer privacy and countless other modern American issues, they’re too corrupt to do that. So Democrats use the ever-shrinking confines of FCC power to implement half measures while Republicans — in perfect lockstep with telecoms — have shifted focus toward exploiting a corrupt Supreme Court to lobotomize federal regulatory power almost entirely.

The central problem with U.S. broadband continues to be concentrated, local monopoly power nobody in either party wants to address. Cable companies dominate broadband access in most U.S. cities, resulting in privacy violations, net neutrality violations, high prices, slow speeds, and spotty access in a service market where consumers are unable to organically punish providers by voting with their wallet.

Republicans actively support telecom monopolization and consolidation. Democrats claim to be interested in fixes, but even Democratic FCC members can’t openly admit monopoly power is a problem in public facing statements. In part because many of these companies, as their role in domestic surveillance has shown, are effectively a part of government and above most meaningful oversight.

We’ll see what happens next. Given precedent (the courts have repeatedly declared the FCC has the legal right to restore or eliminate net neutrality rules provided they have solid factual justification) I doubt industry lawsuits will have much of an impact. But this Supreme Court remains much of a wildcard, and I still don’t think the press or public are taking their looming war on the regulatory state seriously enough.