Net Neutrality — How We Got Here

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Net Neutrality is the idea that internet service providers should treat all traffic equally. That means no blocking, no throttling, and no paid prioritization of content. You’ve probably heard that net neutrality just suffered a major defeat.

What happened?

To understand what happened and how we got here, we have to start in 2005 with the Bush-era FCC.

That year, the FCC adopted a principle that was arguably a step towards net neutrality. The principle held that “consumers are entitled to access the lawful Internet content of their choice.” In other words, internet providers shouldn’t block any legal content. The FCC didn’t go so far as to ban throttling or internet fast lanes, but this no blocking measure was a step towards net neutrality.

In 2008, the FCC cited that principle when it ordered Comcast to stop throttling BitTorrent traffic. Comcast then took the FCC to court over the order. Here’s where it gets interesting. Even though, according to the court, Comcast had complied with the order, the company argued that the FCC didn’t have the authority to regulate its “network management practices.” The court agreed and struck down the order.

In 2010, the FCC passed a new order designed to protect net neutrality — the Open Internet Order. This time it was Verizon that took the FCC to court. Within a month, Verizon announced a suit against the FCC, arguing that the FCC didn't have the authority to enforce these rules. The court agreed, ruling that since the FCC didn't classify broadband providers as “Title II common carriers”, it didn't have the authority to impose the net neutrality rules within its Open Internet Order.

Once again, an FCC action towards enforceable net neutrality had been struck down in court.

In a 2015 expanded version of the Open Internet Order, the FCC went ahead and classified broadband providers as “Title II common carriers”. The order adopted no-blocking, no-throttling, and no paid prioritization rules for these providers.

There’s a catch here. Classifying these providers as “Title II common carriers” gave the FCC more than just the authority to enforce net neutrality. One example is “universal service authority”. Universal service authority gives the FCC certain powers to ensure that all rural regions and low-income consumers have access to telecom and information services.

Verizon, Comcast, and AT&T all opposed the new order. They argued that it subjected them to more than just net neutrality rules. Verizon and Comcast both called for congressional action towards net neutrality rules instead, while AT&T called for congressional action towards an "open internet."

Of course, these public pronouncements should be taken with a grain of salt. It was Verizon, after all, that took the FCC to court over its 2010 Open Internet Order. An order which claimed no Title II authority. It was Comcast that took the FCC to court over the order to stop throttling peer-to-peer traffic. Also an order which claimed no Title II authority. All the while, it was AT&T which had previously not allowed iPhone wireless data connections to be used for cellphone calls, a position it reversed in 2009.

This brings us to the latest chapter in the net neutrality saga. In 2017, Ajit Pai was designated FCC Chairman by President Trump. Pai, as FCC Comissioner, had openly opposed the FCC’s classification of broadband providers under Title II. In December of 2017, under Pai’s leadership, the FCC reversed the “Title II” classification of broadband providers.

What does this reversal mean? It effectively removed the FCC’s authority to enforce net neutrality rules on these providers, at least according to the Verizon court ruling.

So what options do net neutrality proponents have now?

One option would be for Congress to overturn the FCC’s 2017 rule, restoring Title II classification to broadband providers, and thus the FCC’s authority to enforce net neutrality rules. Under the Congressional Review Act, Congress may have as little as 60 days to pass a joint resolution repealing the rule from the date that rule is published in the federal register. The rule was published in the register on February 22nd 2018.

Another option is for Congress to give the FCC explicit authority to impose net neutrality rules without restoring the Title II classification. This would mean introducing legislation mandating net neutrality without giving the FCC powers extending beyond net neutrality. That said, some advocates don’t like this option. They argue that other Title II provisions are worth preserving, such as the "universal service authority".

Whether or not you think the FCC should have the other Title II powers over broadband providers, they are powers that strictly speaking go beyond enforcing net neutrality. That is, no-blocking, no-throttling, and no paid prioritization of content. So it’s useful for a proper understanding of this debate to emphasize that those advocating for only the Title II solution, are advocating for more than net neutrality rules.

Hopefully this gives you a better understanding of where net neutrality is today, and how we got here. Sourced Fact is a collaborative project for raising the quality of information on important public issues, so if you’re interested in helping out in our next deep dive, send us an email here!