Seven years on, the US reinstates net neutrality

• New regulatory environment restores the Obama era status quo ante 
• “Broadband is an essential service. Essential services have oversight”
• Net neutrality remains politically divisive and contentious
• Proponents say it “replenishes democracy”; opponents call it an “Orwellian power grab”

The US telecoms regulator, the Federal Communications Commission (FCC), has reintroduced net neutrality, seven years after it was extirpated during the chairmanship of the particularly partisan Ajit Pai, the man specifically chosen for the task by former president Donald Trump. As the famous baseball catcher Yogi Berra once observed, “It’s like déjà vu all over again.”

The five-strong board of commissioners of the FCC, under current chairperson Jessica Rosenworcel, voted along political party lines – three Democrat votes to two Republican votes. The move reimposed regulatory control over the internet with the intent to render all internet traffic equal by preventing internet service providers (ISPs) from slowing down or throttling some traffic or prioritising traffic accessed via more expensive “premium” services. Furthermore, ISPs will be prohibited from blocking subscriber access to particular websites or online services.

In a statement, Rosenworcel said, “Broadband is now an essential service. Essential services – the ones we count on in every aspect of modern life – have some basic oversight. Net neutrality rules protect internet openness by prohibiting broadband providers from playing favourites with internet traffic. We need broadband to reach 100% of us – and we need it fast, open, and fair.” 

Thus, the FCC says, it will be the US national policy standard “to ensure that broadband internet service is treated as an essential service” and to ensure that service providers “will again be prohibited from blocking, throttling, or engaging in paid prioritisation of lawful content.” 

Additionally, the new regulations mean that ISPs will no longer be able to sell their subscribers’ personal data or to share it with technology companies to enable them to train AI models. It’s a laudable aim, but the AI genie has been out of the bottle for a long time now, and even if it can be forced back in and stoppered up, the reality is that it’s probably too late to make much difference.

Indeed, since the net neutrality rules imposed during the Obama administration were repealed, the internet has undergone some big changes and the new regime will not be dealing with the beast as it existed seven years ago, not least because quite a few US states have enacted their own net neutrality legislation in the absence of overarching federal regulation.

The National Conference of State Legislatures lists 20 states and territories that passed their net neutrality laws and they run the gamut from California via Colorado, Maine, New York and on through to Oregon, Vermont and Washington State. Thus, given that the worst excesses of some of the most rapacious ISPs have been held in check by state laws, many internet subscribers in the US will probably not notice any big changes in their online experience now that nationwide net neutrality has been reintroduced. But, as might be expected, most ISPs and telcos are implacably opposed to the reversion to the status quo ante, calling the decision “unnecessary government interference in business decisions.” And that’s one of the more gently worded objections.

In essence, the move by the FCC classifies internet services as being all but identical to legacy telephone line “common carriers” under Title II of its Congressional Charter. This is the Communications Act of 1934, supporters of which describe as “venerable” and “tried and tested” legislation, while opponents call it “hopelessly outdated” and “antediluvian” and object strenuously to the continued use of a 90-year-old definition that increases the regulator’s power over the US broadband sector. The agency has also announced that, where it deems it necessary, it will intervene in any state or municipal policies “that conflict with the federal net neutrality rule.” The FCC will also have power over areas including  spam robotexts, internet outages, digital privacy and the expansion of high-speed internet access.

5G network slicing could provide premium traffic fast tracks, despite renewed net neutrality

The whole partisan, and often bad-tempered, debate around net neutrality always was, and still is, politically highly charged. 

Michael Copps, who was an FCC Commissioner between 2001 and 2009, issued this trenchant statement in support of the regulatory changes. He wrote, “Today’s FCC vote restoring net neutrality is a HUGE step forwards towards an open internet. The minority commissioner’s arguments against it are anti-citizen, anti-consumer, anti-public safety, and radically inimical to the kind of open internet needed to replenish our democracy.”

He added, “Today’s action brings back moderate rules that have already passed court muster and are essential building blocks for a consumer-friendly and citizen-friendly internet. Our communications technologies are evolving so swiftly, affecting so many important aspects of our individual lives, that they must be available to all of us on a non-discriminatory basis.”

Reaction from the big and powerful deregulatory caucus has been just as swift. Ajit Pai, a former in-house counsel at the giant US telco Verizon and the prime mover (along with Donald Trump) behind the termination of net neutrality back in 2017, stuck his head above the parapet to declare the FCC’s repeal of ‘his’ anti-net neutrality regime has been a “complete waste of time” over something that “nobody actually cares about.” Well, obviously they do, not least him.

Meanwhile, Jonathan Spalter, the CEO of USTelecom, the trade body representing ISPs, roundly condemned the FCC, stating: “These 400-plus pages of relentless regulation are proof positive that old orthodoxies die hard. This is a non-issue for broadband consumers, who have enjoyed an open internet for decades. Rather than pushing this harmful regulatory land grab, policymakers should keep their eyes on the real-world prize of building opportunity for everyone in a hyperconnected world.”

Elsewhere, the junior Republican Senator for Texas, Ted Cruz, characterised the FCC’s actions as an “illegal power grab” although he failed to explain where the illegality might be centred. Then the Republican minority FCC commissioner, Brendan Carr, weighed in, saying “proponents of this plan will use the euphemistic, if not Orwellian, term ‘net neutrality’ to describe it, there’s no hiding the fact that this is nothing more than a government power grab.” 

He also described the Democratic-majority commissioners as having touched “the third rail of communications policy.” Despite the sparks flying everywhere, he continued, "The internet in America has thrived in the absence of 1930s command-and-control regulation by the government. Well, ISPs and telcos have certainly thrived, there’s no denying that. 

So, now that happens. Well it’s a bucket of frogs to a bottle of soda pop that ISPs and telcos will challenge the new regulations in court after court in a war of attrition what could last for years, but the current board of commissioners of the FCC has learned from lawsuits of the past and the new rules have been carefully designed and constructed to minimise the possibility of falling into legal traps. However, the agency might have been a bit too clever for its own good in that while throttling of traffic is prohibited under the new net neutrality regime, acceleration of traffic is not. Some sharp minds have already discerned this as a potential loophole: Network slicing technology can split 5G networks into a multiplicity of virtual networks and they can be tweaked for individual applications and one such could be the emergence of traffic fast lanes. It is possible that if/when 5G becomes popular with US consumers, paid-for 5G expressways will exist despite the return of net neutrality. 

You can’t win ‘em all. To quote another Yogi Berra classic, “When you come to a fork in the road, take it.” The FCC has done just that and, in time, we’ll all see where it leads.

- Martyn Warwick, Editor in Chief, TelecomTV