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Biden's call to restore net neutrality: What you should know

Rules for protecting a free and open internet are in the news again. This time they're being pitched as a gateway to more competition. Here's what it means.

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Net neutrality is back in the news.

Chip Somodevilla/Getty Images

President Joe Biden wants net neutrality regulations back on the books. In an executive order released Friday, he urged the Federal Communications Commission to restore Obama-era net neutrality rules and to take other measures to promote broadband competition. This includes asking the FCC to require broadband companies to provide transparency on pricing. 

The news comes as Biden pushes his big infrastructure plan, unveiled in April, which includes significant funding for new infrastructure and encouraging more competition. Initially, Biden pledged $100 billion over eight years to make sure every American has broadband access. That figure has since been lowered to $65 billion to match a Republican proposal

Policy makers have for years struggled to solve the digital divide, or the gap between those with broadband access and those without. But the issue has taken on a new urgency over the past year as the pandemic and resulting lockdown provided a stark reminder that having adequate broadband is no longer a luxury. 

The Biden White House sees a lack of competition as a major problem perpetuating the digital divide, and sees reinstating the rules adopted in 2015 under President Barack Obama as a major policy objective to ensure big broadband companies don't abuse their power over their networks. The rules were repealed in 2017 under a Republican-led FCC.

"Big providers can use their power to discriminatorily block or slow down online services," the fact sheet from the White House says. "The Obama-Biden Administration's FCC adopted 'Net Neutrality' rules that required these companies to treat all internet services equally, but this was undone in 2017."

Net neutrality protections have enjoyed strong public support. Millions of Americans protested former FCC Chairman Ajit Pai's order to dismantle net neutrality. 

Net neutrality supporters applauded the executive order and calls for the FCC to restore net neutrality protections. But they also urged Biden to nominate a fifth FCC commissioner to the agency. Currently, the agency has two Democrats, including Acting Chair Jessica Rosenworcel, and two Republicans. But without a third Democrat at the agency, it will be impossible for the agency to enact new net neutrality rules or any of the other objectives laid out in Biden's executive order. 

"We're grateful that President Biden remains committed to promoting broadband competition and protecting the open internet, and the steps suggested in the executive order are necessary but not yet a done deal," said Matt Wood, vice president of policy and general counsel for consumer advocacy group Free Press. "The executive order is important, but the processes and personnel to actually move ahead on these priorities are not in place yet. Right now the FCC is deadlocked at two Democratic and two Republican votes; the agency needs a fifth commissioner to fully function."

Lobbying groups for the cable and telecom industries were quick to criticize the president's executive order. 

"We are disappointed that the executive order rehashes misleading claims about the broadband marketplace, including the tired and disproven assertion that ISPs would block or throttle consumers from accessing the internet content of their choice," NCTA, the cable industry's lobbying group, said on Friday

USTelecom, which lobbies for the telecom industry, argued in a blog post that the industry invests "nearly $80 billion annually to connect communities, upgrade infrastructure, bolster speeds and innovate across their networks." Jonathan Spalter, president and CEO of USTelecom, also argued that broadband prices are dropping. 

Consumer advocates point out that these claims are based on a "price-per-megabit" calculation that doesn't reflect the total cost of a consumer's bill. They argue that the amount consumers pay for internet service has been rising faster than inflation

To help you better understand what net neutrality is and why it matters, CNET has put together this FAQ. 

What is net neutrality again?

Net neutrality is the principle that all traffic on the internet should be treated equally, regardless of whether you're checking Facebook, posting pictures to Instagram, or streaming movies from Netflix or Amazon. It also means companies like AT&T, which bought Time Warner, or Comcast, which owns NBC Universal, can't favor their own content over that of a competitor.

What did the 2015 net neutrality rules actually do?

The 2015 rules adopted under FCC Chairman Tom Wheeler, a Democrat, prevented broadband providers from blocking or slowing access to the internet or charging for faster access. 

The rules also reclassified broadband as a Title II service under the Communications Act of 1934, which firmly established the FCC's oversight over broadband. This gave the agency the authority to police broadband abuses, such as weak privacy practices or fraudulent billing. In addition, the 2015 rules, along with the Title II authority, allowed the FCC to promote competition by doing things such as preempting state laws that prohibit municipalities from offering broadband services. It also gave the FCC authority to require broadband companies to be more transparent on pricing, another objective of the Biden executive order on competition. 

Are there any net neutrality rules in place right now?  

Broadband providers in California and Washington state do have to follow net neutrality rules because of state laws enacted in 2018. Many providers are likely following those practices in other states too simply because it makes it easier to operate. But establishing new federal net neutrality rules would offer consistency across states and would also ensure the FCC has the authority to enforce rules throughout the country. 

If the current FCC were to come up with new net neutrality rules, would they be exactly the same as the rules adopted in 2015?

Probably not. Net neutrality supporters agree that things have changed since the rules were adopted six years ago. Proponents of net neutrality say new rules would likely go beyond the restrictions laid out in the 2015 rules. Specifically, this could mean banning things like zero-rating, which is the practice of bundling access to certain content or services for free as part of broadband service. An example of such a service is a promotion offered by AT&T, which exempted its own streaming services from its wireless customers' data caps. 

The FCC could also reinstate Title II authority to ban or put restrictions on broadband and wireless data caps. The 2015 rules didn't explicitly address either of these issues. But it did include a so-called "general conduct" rule that allowed the agency to crack down on companies that tried to abuse their market power. 

Why should I care about net neutrality?

The battle over net neutrality is really about determining who, if anyone, will police the internet to ensure that broadband companies aren't abusing their power as gatekeepers.

What are the arguments for and against net neutrality?

Supporters of net neutrality say rules are necessary to ensure broadband companies aren't taking advantage of their power over access to broadband networks. These supporters also say that reinstating the FCC's authority over broadband companies could help make the broadband market more competitive. Tens of millions of people are still without access to any broadband service, and many millions can't afford service. Net neutrality regulations on their own won't fix these issues, but supporters say reinstating the rules could help. 

On the other side of the debate, broadband companies and their allies say the old rules gave the FCC too much power, stifling broadband investment. Former FCC Chairman Pai claimed during his tenure that investment in broadband had increased as a result of the repeal. But there has been no clear evidence from earnings reports, independent research and even statements from broadband company CEOs themselves to show that the repeal had any effect on investment in the broadband sector.

Would new rules be challenged in court again?

As we've seen with the 2015 net neutrality rules and the 2017 repeal of those rules, it's almost certain that any action the FCC takes to reinstate net neutrality protections and to impose Title II classification on broadband will be met with lawsuits. 

Over the past several years, federal appeals courts have twice sided with the FCC on whether the agency can change the classification of broadband to determine if it should be regulated. What this means in practical terms is another several years of litigation and uncertainty. 

What will it take to make net neutrality permanent?

The only way to finally put the issue to rest would be for Congress to act.  If Congress doesn't act, the net neutrality rules and the FCC's authority to regulate broadband will continue to ping-pong back and forth depending on which party controls the White House. 

There are already Democrats on Capitol Hill pushing for legislative action. 

Sen. Ed Markey, a Democrat from Massachusetts, applauded Biden's call for restoring net neutrality rules. 

"As soon as there are three Democratic commissioners in place, the FCC must act without delay to reclassify broadband as a Title II service and reassert its authority over broadband," Markey said. "I also plan to soon introduce legislation to do the same by statute. We cannot and will not stop working until net neutrality is the law of the land."