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The Past, the Present and Future of Net Neutrality in the U.S.

Net neutrality refers to the idea that governments should strive to make the internet equitable by requiring internet service providers (ISPs) to treat all traffic equally. It remains an American problem—many European countries, and the United Kingdom, have net neutrality laws in place and specific agencies that enforce the rules. The U.K., for example, relies on OFCOM to ensure compliance with standards set by Parliament.

In the United States, however, net neutrality is still far from a guarantee. Despite net neutrality’s popularity across party lines for voters, Democratic and Republican representatives have tended to disagree over net neutrality in recent years: Democrats have argued for the internet to be treated as a public utility, whereas Republicans have argued for big telecommunication companies to be free from federal government intervention.

Currently, “there is no expert agency in the U.S. that ensures the internet is fast, open, and fair” and net neutrality has fallen under the purview of the Federal Communications Commission. The policy landscape is not being shaped by congress or driven by citizens but rather “fine grained legal arguments” in cases between federal commissions and internet conglomerates, removed from the daily reality of internet access and use.

The state of net neutrality policy in the U.S. ultimately stems from Congress’s reticence to pass federal guidelines. Without federal legislation, legal precedence has been left to be based on decades old legislation, namely, the 1934 Communications Act and the 1996 Telecommunications Act. The 1996 Telecommunications Act amended the 1934 Communications Act, which both created the FCC and outlines how the government may regulate the communication sector, to provide for the substantial advances in technology during the 20th century. Court decisions regarding FCC’s ability to regulate and enforce net neutrality are based on these two acts.

Cumulative cases from over two decades have determined that the FCC’s powers ultimately boil down to its ability to classify internet access as either an “information service” or a “telecommunications service.” This language comes from the 1996 Telecommunications Act, and it differentiates whether the service providers are subject to Title I or Title II levels of regulation defined in the 1934 Communications Act.

Title I does not contain “strong regulatory language” whereas Title II does. Thus, if internet access is classified as an information service, then ISPs would be subject to comparatively lax regulations. If classified as a telecommunications service, then ISPs would be subject to comparatively stricter regulation.

Both the FCC’s power to classify internet access, well as and the classification the FCC has claimed, has evolved since the early 2000s. In 2005, in Brand X v FCC the Supreme Court ruled that internet access was an “information service”, but confirmed the FCC’s ability to classify it as falling under Title I or Title II. Also in 2005, the FCC adopted the Internet Policy Statement, which sought to ensure that “consumers had the right to access and use the lawful content, applications, and devices of their choice online, and to do so in an internet ecosystem defined by competitive markets.”

The FCC attempted to enforce the principles in 2008 when Comcast “unduly squelched(d) the dynamic benefits of an open and accessible Internet.” The FCC ruled that Comcast had violated the net neutrality principles outlined in the Internet Policy Statement, and Comcast challenged their efforts by requesting judicial review. The request resulted in Comcast Corp v FCC, which found that the FCC cannot enforce net neutrality policy through ancillary jurisdiction.

In response, the FCC established the 2010 Open Internet Order, which adopted three “fundamental rules governing” ISPs:

  1. ISPs cannot block content

  2. ISPs cannot unreasonably discriminate content

  3. ISPs must be transparent about their “network management practices, performance, and terms of service”

An ISP once again challenged the FCC’s move, claiming that the FCC had overstepped its jurisdiction as a regulatory authority. In Verizon v FCC, the Supreme ruled that the FCC couldn’t enforce net neutrality regulation if ISPs were not classified as basic common carrier service providers. Such classification would allow the FCC regulatory authority under Title II.

To do this, the FCC adopted the 2015 Open Internet Order, which was once again challenged. In United States Telecom Association v FCC, however, a DC District court confirmed that the FCC has the power to classify and reclassify both technologies and companies. Despite the seeming confirmation of net neutrality through both the FCC’s own precedent and the thumbs up from the judiciary, the FCC chairman appointed by former Republican President Donald Trump led a charge to repeal the Title II classification.

In December 2017, after a controversial lead up with an open comment period that researchers say was flooded by bots, the FCC voted to repeal the 2015 Open Internet Order.

In an ironic turn of events, net neutrality supporters sued the FCC to try to get the decision reversed to reinstate a pro-net neutrality stance. Mozilla Corp v FCC 2019 court case upheld the FCC’s power to make the classification, which meant that the FCC's decision to abandon net neutrality was held. The decision did confirm, however, that state’s could impose their own net neutrality policies and the FCC could not interfere with state legislatures.

The outcome was commented on by media outlets as the death of net neutrality: The Verge, for example, wrote that “The FCC just killed net neutrality” and the New York Times wrote that “the internet is dying.” Since the 2019 decision, there has been little movement or discourse about the future of net neutrality in the states.

Jonathan Strickland in the podcast Tech Stuff argues that “many fears about an internet without net neutrality have not panned out.” While the U.S. doesn’t have an internet with vast internet speed differences, he says, there is still little competition among ISPs, and there is little incentive to invest in innovation without it.

COVID-19 also highlighted the importance of internet access as a basic right. With months long lockdowns and necessary quarantine periods, many jobs turned remote and classrooms and campuses went virtual. Participation in daily life depended on a reliable internet connection, and many basic necessities like food, clothes, and home appliances were purchased online.

While internet access has always been important to daily life,” writes the FCC, “with the rapid shift of work, education, and health care online demonstrated how essential broadband Internet connections are for consumers’ participation in our society and economy.”

This autumn, the FCC under the Biden administration proposed rules that would re-establish “fixed and mobile broadband service” as an essential telecommunications service. The FCC voted to move forward with the proposal on 19 October, meaning that the proposal will be opened to public comment and then voted on.

If it’s successful, the proposal could result in the full restoration of net neutrality policy by next spring. Such a restoration would enable the current FCC membership to bring to fruition the ambitions of previous administrations to cement net neutrality and an open internet. While it would be a welcome step forward, it must also be accompanied by federal legislation to ensure that the progress could not be undone come a new administration. Without a move from Congress—and the FCC’s proposal will be a much needed signal for Congress to act—net neutrality’s ultimate fate is as uncertain as ever.


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