The Bush-era FCC took a first pass at anti-discrimination rules for the internet in a policy statement in 2005. It prohibited internet service providers from blocking legal content or preventing customers from connecting the devices of their choosing to their internet connections. Under this policy, the FCC ordered Comcast in 2008 to stop slowing connections that used the peer-to-peer file-sharing software BitTorrent, which was often used for digital piracy but also had legitimate uses. Comcast sued the FCC, arguing the agency had overstepped its bounds. A federal court agreed, ruling that the FCC had failed to make the legal case that it had the authority to enforce the 2005 policy statement.
Wait, What’s a Common Carrier Again?
Certain services and businesses have been seen as so crucial to the functioning of society and the economy that governments dating back to Ancient Rome have passed special laws to ensure open access to them. In exchange for serving the entire public, as opposed to being able to pick and choose customers, common carriers were often rewarded with legal benefits, such as special access to public property. For example, railroads—long treated as common carriers in the US—are allowed to lay tracks across public land. Today, telephone providers are classified as common carriers, and in the dialup era internet providers were considered to be their customers. If it hadn’t been for their common carrier status, telcos might have gotten away with charging customers more to access the internet than to make traditional voice calls, as they tried to do in the 1990s.
In 2010, the Obama-era FCC passed a more detailed net neutrality order that it hoped would stand up to legal scrutiny. But the agency was sued again, this time by Verizon, and in 2014 the same court ruled the agency didn’t have the authority to impose net neutrality regulations on services that weren’t considered common carriers under Title II of the Communications Act, like traditional telephone services.
Later that year, the FCC floated a new proposal that net neutrality proponents worried would allow internet “fast lanes.” The idea drew the ire of comedian John Oliver, who encouraged viewers of his show Last Week Tonight to file comments to express their support for net neutrality. The flood of comments crashed the FCC’s website. The agency eventually received 21.9 million comments on the issue, shattering the record previously held by Janet Jackson’s 2004 Super Bowl “wardrobe malfunction.”
Then-FCC chair Wheeler eventually changed tack and decided to reclassify broadband providers as Title II carriers, though with fewer obligations than landline telephone operators. The FCC passed its sweeping net neutrality order in 2015, and was again sued by telecommunications firms. The same federal court that shot down the FCC’s previous attempts at net neutrality rules finally sided with the agency, ruling that the 2015 rules were legal. An industry group appealed that decision to the Supreme Court, which has yet to hear the case.
Meanwhile, control of the FCC changed as a result of the 2016 election. In January 2017, President Trump appointed Republican FCC Commissioner Ajit Pai as the agency’s new chair. In April, he announced a plan to reverse the 2015 net neutrality order. The FCC website was once again flooded with comments. But this time, observers noticed that a huge number of comments, many of which opposed net neutrality, were filed not by people but by bots.
The December 2017 FCC vote effectively threw out the 2015 rules in their entirety. The FCC’s new rules drop the common-carrier status for broadband providers, as well as any restrictions on blocking or throttling content. In place of those restrictions, the new rules only require that internet service providers disclose information about their network-management practices. It will now be up to the Federal Trade Commission to protect consumers from alleged net neutrality violations. But the FTC is only an enforcement agency: It can’t create new rules. That means that unless a net neutrality violation is also illegal under existing fair-competition laws, there’s not much the agency can do about it. Outright blocking a competitor may well be an antitrust violation, but creating fast lanes for companies that pay extra for special treatment might not be.
The Future of Net Neutrality
The future of net neutrality is now in the hands of Congress, the courts, and the states. Twenty-one state attorneys general sued the FCC in January 2018 to block the new rules and restore the old ones; so did several consumer-advocacy groups. A federal court decided mostly in the FCC’s favor in 2019, but ruled that the agency couldn’t override state-level net neutrality laws.
Past Net Neutrality Violations
A few internet providers, including Cox and Comcast, banned some customers from using virtual private networks (VPNs) and asked users to upgrade to professional or business accounts if they wanted access. The practice was short lived, but it helped inspire the net neutrality movement.
Today we think about net neutrality mostly in terms of access to content, but in the early 2000s advocates were also worried that broadband providers would block customers from using some devices. AT&T, for example, used to ban customers from setting up their own Wi-Fi routers.
North Carolina internet service provider Madison River blocked Vonage, a service for making telephone calls over the internet. The FCC fined Madison River in 2005 and ordered it to stop blocking, marking one of the first efforts to enforce net neutrality rules.
The FCC ordered Comcast to stop throttling BitTorrent connections on its network in 2008. Comcast denied that it throttled BitTorrent, but sued the FCC, successfully arguing it had no authority to stop Comcast from slowing down connections if it wanted to.
Apple was caught blocking iPhone users from making Skype calls at the request of AT&T. The companies eventually relented under pressure from the FCC.
Several states have already passed such laws. Washington state became the first in March 2018, and Oregon followed soon after. California passed one of the most comprehensive net neutrality laws of all, but the rules are currently on hold amidst a legal challenge from the federal government. Governors of Hawaii, Montana, New Jersey, New York, and Vermont have passed executive orders banning state agencies from doing business with broadband providers that don’t uphold the principles of net neutrality.
In the meantime, you can expect broadband providers to slowly take advantage of their new freedom. They probably won’t take big overt steps to slow down or block competing services, especially not while courts are still deliberating the FCC’s latest decision. But you can expect to see more of the practices that carriers already employ, like letting their own content bypass data limits. For example, AT&T already lets you watch its DirecTV Now video service without having it count against your data plan, but watching Netflix or Hulu still chews through your limit.
Here’s How the End of Net Neutrality Will Change the Internet
If you want to know more about what broadband providers are most likely to do once the net neutrality rules go away, start here. We take a deeper look at the ways companies already use data caps to shape your internet experience, and what clues these practices provide about what the future holds.
The Covid-19 Pandemic Shows the Virtues of Net Neutrality
It might seem quaint to worry about net neutrality during Covid-19 pandemic. But the crisis made the internet more important than ever, highlights why people need unfettered access content, and illustrates why key arguments against net neutrality just don’t hold up.
California Net Neutrality Bill Would Go Beyond Original Protections
Several states have passed executive orders to protect net neutrality, and both Oregon and Washington have passed their own rules as well. But so far no state’s protections are quite as robust as the Obama-era FCC rules. California could change that. The state passsed the toughest net neutrality bill yet.It’s on hold pending the resolution of a challenge from the Department of Justice, but it sets an example for other states.
Why Trump Supporters Should Love Net Neutrality
Net neutrality is a partisan issue in Washington, but it shouldn’t be. Here’s why conservatives should fight big cable and embrace net neutrality.
The FCC Says Net Neutrality Cripples Investment. That’s Not True
We took a hard look at earnings reports from the broadband industry, and found that one of the biggest claims made by net neutrality opponents is false. In fact, some broadband providers actually invested more on infrastructure after the 2015 net neutrality rules passed.
How Bots Broke the FCC’s Public Comment SystemThe FCC received an unprecedented number of comments on its plan to reverse its net neutrality protections. But researchers think the vast majority of those comments came from bots. We took a look at the evidence and what it means for the future of online debate.
FCC Plan to Kill Net Neutrality Rules Could Hurt Students
Broadband plays a crucial role in education, from grade school to career retraining. Here’s how the end of net neutrality could set students back.
This Is Ajit Pai, Nemesis of Net NeutralityFCC chair Ajit Pai might be the most hated man on the internet. WIRED tracks his progression from nerdy high school student to policy wonk to head of the country’s top telecom regulator.
Plus! Local legislation and more WIRED net neutrality coverage.
This guide was last updated on May 4, 2020.
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