Net neutrality is back, but it’s not what you think

Editor’s note, October 19, 3:20 pm ET: The FCC has voted to proceed with its proposal to restore the net neutrality rules that were repealed during the Trump administration. The agency will seek public comment on the issue before voting to finalize it, which should happen sometime in early 2024. The original story, published on September 28, follows.

Five years after net neutrality’s (temporary) demise, the Federal Communications Commission (FCC) is set to fulfill the Biden administration’s vision of re-implementing the Obama-era policy. That means the effort to reclassify broadband internet from an information service to a common carrier, subject to increased oversight and regulations just like phone companies, is back, too.

The agency just got its third Democratic commissioner, Anna Gomez, after waiting nearly two years for the Senate to confirm a Biden appointment (a previous Biden nominee, Gigi Sohn, withdrew in March). The 2–2 deadlock that prevented the agency from making any politicized changes has now been broken, and FCC chair Jessica Rosenworcel clearly doesn’t want to waste any more time. Net neutrality, which she’s a longtime proponent of, is first on the agenda.

Rosenworcel announced plans to restore the policy on Tuesday, saying that the Trump-era repeal of net neutrality “put the agency on the wrong side of history, the wrong side of the law, and the wrong side of the public. It was not good then, but it makes even less sense now.”

“Today we begin a process to make this right,” she said.

And so begins the next battle in a years-long war that has spawned mass protests, one (likely soon to be two) agency reversals, and major lawsuits — and was part of the reason why the FCC under President Biden didn’t have its full complement of five commissioners until now. It’s also the subject of a well-moneyed campaign from telecommunications companies, who like to frame net neutrality as simply forcing broadband providers to treat all traffic equally, something they say they already do (which isn’t entirely true), and argue that there’s no need to mandate it. But net neutrality — or, to be more exact, the reclassification of internet service providers that makes net neutrality possible — is about a lot more than that.

CNN Business refers to net neutrality as a “third rail of broadband policy” because it’s somehow become a controversial, politicized issue. That makes it harder for the average person to know exactly what net neutrality is and what it would mean for them. Net neutrality’s opponents, which include most Republicans and the telecommunications companies whose services would be governed by the rule, say it will subject internet service providers to overburdensome regulations and stuffy government oversight, which will stymy innovation and competition in an industry that already provides great service (some might disagree with that assessment) to the American people. Proponents, including most Democrats, consumer advocates, and internet services like Netflix, say that the internet has become a vital and necessary part of American life and should be classified accordingly under the FCC’s purview, just like the telegraph and telephone services that came before it were. 

“There is a misinformation campaign associated with net neutrality,” Tom Wheeler, the chair of the FCC when net neutrality was first passed, told Vox. He added that it distracts from “the broader question, which is that it is absolutely absurd that there would be no public interest oversight of the most important network of the 21st century.”

Net neutrality — or network neutrality, if you want the longhand — means that internet service providers like Verizon and Comcast must treat all traffic equally. They can’t speed up traffic to some sites or slow it down (or block it) to others. They can’t charge extra to visit sites or services, nor can they give any sites or services priority. This is how our phone lines work; carriers can’t charge extra or block calls to different carriers without cause, for example. And while internet service providers have largely done the same, without net neutrality there’s nothing on a federal level requiring that they do. The FCC, however, can’t require net neutrality from internet service providers if broadband isn’t classified as a common carrier under Title II of the Telecommunications Act. We know this because when the agency tried to issue net neutrality rules in the past, Comcast and Verizon sued to stop it, and they won.

After that, the FCC moved to reclassify high-speed internet under Title II. In 2015, it did so with the Open Internet Order. Then Trump took office and put Ajit Pai in charge of the FCC, where he quickly set about undoing net neutrality. He accomplished that in 2018 with the Restoring Internet Freedom Order, which re-reclassified broadband internet from a Title II carrier back to an information service under a “light-touch regulatory scheme” with a few transparency requirements.

Now the FCC wants to reclassify broadband — actually, this would re-re-reclassify broadband — and has the votes to do it. It might seem like 2015 again, but a lot has happened in the intervening years, Rosenworcel said, that only helps make the case that broadband needs to be a common carrier.

The pandemic “made it crystal clear that broadband is no longer nice-to-have; it’s need-to-have for everyone, everywhere,” she said. “It is not a luxury. It is a necessity. It is essential infrastructure for modern life. ... Yet even as our society has reconfigured itself to do so much online, our institutions have failed to keep pace. Today, there is no expert agency ensuring that the internet is fast, open, and fair.”

There may be no greater example these days of the internet’s importance and the need for real regulation than the war in Ukraine. The success of some Ukrainian military operations is dependent on internet service, yet a mercurial business owner has the sole authority to pick and choose where and when it’s available. 

“We should not have to live with broadband as a ‘best efforts’ service where your internet provider decides whether or not to invest in needed maintenance and upgrades,” Harold Feld, a senior vice president for consumer advocacy group Public Knowledge, told Vox. 

So, what, exactly, does it mean to be a Title II carrier besides the net neutrality part? Primarily, it gives the FCC more oversight and authority. As Rosenworcel said, it means that technology that has become as — if not more — important than the phone will have the kind of agency oversight that many other essential industries and services have had for a long time. It’ll give the FCC the ability to make privacy rules, ensure that people have access to internet services, require more transparency and accountability from providers, and regulate rates (though the FCC expressly said it would not do this back in 2015 and it will likely do the same now). The FCC will be able to act sooner and more thoroughly on national and cybersecurity issues, too.

“If you do not have authority over broadband networks, then how do you deal with what happens when there’s an effort to weaponize those networks by adversaries?” Wheeler asked. “How do you deal when those networks trample on the privacy rights of their users? How do you deal with the fact that every single cyberattack at some point in time goes across a public network? If you don’t have jurisdiction over those networks, how can you put protections in place?”

Republicans, unsurprisingly, have labeled the move a power grab that will make internet service worse and more expensive; Sen. Ted Cruz (R-TX) said in a statement, “FCC Democrats simply want control. They desperately want to micromanage providers’ pricing and terms of service, and collect billions in new USF taxes at the expense of investment, economic growth, and consumer choice.” (Again, the new FCC rules are likely to say that the agency won’t regulate rates, just as they did in 2015.) 

But you can judge for yourself if America’s broadband internet is the best it can possibly be, with the choice, service, access, and investment that a crucial technology can and should have. Ending net neutrality back in 2018 may not have destroyed the internet, like some net neutrality supporters thought it would, but did it make it any better? Do we want a future where access to a vital service is controlled by relatively few companies, governed by even fewer rules? 

“We didn’t invent the FCC because it was a boring Tuesday in 1934 and FDR said ‘I know what will perk things up!’” Feld said. “We did it, in the words of Section 1 of the Communications Act, ‘for the purpose of the national defense, for the purpose of promoting safety of life and property,’ and to ensure to all people of the United States the best communication network possible.”

“We need an internet that works predictably and reliably so we can get on with our lives,” he added. 

Assuming the re-re-reclassification goes through — the process will likely take several months — we can expect it to be challenged in the courts and possibly even by a future Republican Congress (which basically overruled the FCC’s attempt to make privacy rules during the short window when broadband was a Title II carrier). So if and when the FCC finalizes the return of net neutrality, we won’t know for sure that rule is, in fact, final. History shows us that it may not be, but something has to stick sometime, right?

A version of this story was also published in the Vox Technology newsletter. Sign up here so you don’t miss the next one!