Net neutrality is dead — at least for now. In a 3-2 vote today, the Federal Communications Commission approved a measure to remove the tough net neutrality rules it put in place just two years ago. Those rules prevented internet providers from blocking and throttling traffic and offering paid fast lanes. They also classified internet providers as Title II common carriers in order to give the measure strong legal backing.
Today’s vote undoes all of that. It removes the Title II designation, preventing the FCC from putting tough net neutrality rules in place even if it wanted to. And, it turns out, the Republicans now in charge of the FCC really don’t want to. The new rules largely don’t prevent internet providers from doing anything. They can block, throttle, and prioritize content if they wish to. The only real rule is that they have to publicly state that they’re going to do it.
ADVOCATES SAY INTERNET PROVIDERS WILL PRIORITIZE THEIR OWN CONTENT OVER THEIR COMPETITORS
Opponents of net neutrality argue that the rules were never needed in the first place, because the internet has been doing just fine. “The internet wasn't broken in 2015. We were not living in some digital dystopia,” commission chairman Ajit Pai said today. “The main problem consumers have with the internet is not and has never been that their internet provider is blocking access to content. It's been that they don't have access at all.”
While that may broadly be true, it’s false to say that all of the harms these rules were preventing are imagined: even with the rules in place, we saw companies block their customers from accessing competing apps, and we saw companies implement policies that clearly advantage some internet services over others. Without any rules in place, they’ll have free rein to do that to an even greater extent.
Supporters of net neutrality have long argued that, without these rules, internet providers will be able to control traffic in all kinds of anti-competitive ways. Many internet providers now own content companies (see Comcast and NBCUniversal), and they may seek to advantage their own content in order to get more eyes on it, ultimately making it more valuable. Meanwhile, existing behaviors like zero-rating (where certain services don’t count toward your data cap) already encourage usage of some programs over others. If during the early days of Netflix, you were free to stream your phone carrier’s movie service instead, we might not have the transformational TV and movie company it’s turned into today.
One of the two Democrats on the commission, Jessica Rosenworcel, called today’s vote a “rash decision” that puts the FCC “on the wrong side of history, the wrong side of the law, and the wrong side of the American public.” This vote, Rosenworcel says, gives internet providers the “green light to go ahead” and “discriminate and manipulate your internet traffic,” something she says they have a business incentive to do.
“THIS IS NOT GOOD. NOT GOOD FOR CONSUMERS. NOT GOOD FOR BUSINESSES.”
“This is not good,” Rosenworcel says. “Not good for consumers. Not good for businesses. Not good for anyone who connects and creates online.”
Commissioner Clyburn, the other Democrat, said the implications of today’s vote are “particularly damning ... for marginalized groups, like communities of color, that rely on platforms like the internet to communicate.” No one will be able to stop internet providers if they allow the social media services these groups rely on to slow down, blocking the dissemination of information, Clyburn said.
Both Rosenworcel and Clyburn also criticized the FCC’s handling of the public comment period that proceeded this vote, saying that the administration acted inappropriately in ignoring millions of voices in support of net neutrality. “It is abundantly clear why we see so much bad process with this item: because the fix was already in,” Clyburn said. Rosenworcel said the commission showed a “cavalier disregard” for the public and a “contempt” for citizens speaking up.
The vote comes after a contentious and messy public comment period. After opening the proposal up for feedback earlier this year, the commission received a record-breaking 22 million comments. But many of those comments were spam — 7.5 million, according to the commission — and the FCC has refused to help investigations into what happened. The commission was also quiet about website problems that caused its comment form to crash briefly in May.
THE FCC CAN EXPECT A LAWSUIT
Those comments are likely to play a role in whatever lawsuit hits following this vote. Net neutrality supporters are almost certain to sue the commission in an attempt to invalidate this proceeding and restore the 2015 net neutrality rules. While the commission is allowed to change its mind, it isn’t allowed to change rules for “arbitrary and capricious” reasons. In court, the FCC will have to prove that enough has changed since 2015, and that there’s enough evidence in the record of comments, to back up the conclusion that it ought to revoke net neutrality.
Since the beginning of this proceeding, the commission has made it very clear that it isn’t really interested in most public comments either, despite a requirement to accept and consider them. The commission has stated time and again that it only values legal arguments, so we may see complaints that millions of consumer comments were ignored. Even if they don’t include the spam, the net neutrality proceeding was still the most commented ever at the commission.
This is the first time in more than a decade that the FCC has actually been opposed to net neutrality. The FCC has been promoting open internet rules since the mid-2000s, though it wasn’t until 2010 that they were turned into formal regulations. In 2014, those were overturned in court after the FCC was sued by Verizon. The court said that the FCC could try again using Title II, and so it did that in 2015. Those rules, which have been in place for two years, are the ones getting overturned today.
YOU WON’T SEE MAJOR CHANGES OVERNIGHT
The vote ran over over an hour, with extensive speeches from the five commissioners, particularly from the two dissenting Democrats. In an highly unusual moment, the commission’s meeting room was evacuated briefly “on advice of security.” Cameras that remained on and streaming showed dogs being brought in to search the room.
Now that the vote is over, the commission will take a few weeks to make final adjustments to the rules. They’ll then be filed with the Federal Register and appear there in a few months. At that point, net neutrality will officially be off the books, and these new rules (or really, the absence of any) will take effect.
So what can you expect to change now that net neutrality is over? Not all that much — not overnight, at least. Rather than large swaths of the internet suddenly becoming unavailable or only offered for a fee, internet providers will likely continue to explore subtler methods of advantaging themselves and their partners, like offering data to use certain services for free or speeding up delivery of their own content.
These are things that may initially sound good. But in the long run, they disadvantage upstarts that don’t have the money to pay up. The problem is that, eventually, we may not know what products and services we missed out on because they never made it through the mess.