Net neutrality fight is about to come roaring back

FCC Chairman Ajit Pai will step down when President-elect Joe Biden takes office in January. That's likely to reignite an old debate over who should police the internet.

Marguerite Reardon Former senior reporter
Marguerite Reardon started as a CNET News reporter in 2004, covering cellphone services, broadband, citywide Wi-Fi, the Net neutrality debate and the consolidation of the phone companies.
Marguerite Reardon
7 min read
Net neutrality protest

Activists gather in Washington DC outside FCC headquarters in December 2017 to protest the repeal of Obama-era net neutrality protections.  

Chip Somodevilla/Getty Images

An old battle over who governs the internet will likely reignite as Democrats take control of the Federal Communications Commission following the inauguration of Joe Biden. Reinstating Obama-era net neutrality rules thrown out under the Trump administration will likely be a top priority for the agency, experts say. 

Earlier this week, FCC Chairman Ajit Pai, an appointee of President Donald Trump, announced he'll be stepping down from his post on Jan. 20 -- the day Biden is sworn in. That paves the way for a Democrat to lead the agency and reestablish the FCC's authority to impose rules of the road for the internet. 

At stake in this battle is who, if anyone, will police the internet to ensure that broadband companies aren't abusing their power as gatekeepers. 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 firmly established the FCC's oversight over broadband, which would give the agency the authority to police broadband abuses, such as weak privacy practices or fraudulent billing. In addition, they would give the agency more authority to promote competition by doing things such as preempting state laws that prohibit municipalities from offering broadband services. 

Reclassifying broadband as a Title II service would also ensure the FCC is on firm legal footing to modernize its Universal Service Fund programs, which help provide subsidies to poor Americans for phone service and broadband and which also provide E-rate funding to schools and libraries to offer broadband service. 

Pai, who was a vocal opponent of the net neutrality order when he was a commissioner on the FCC, led the effort to get rid of the rules once Trump elevated him to head the agency in 2017. As part of the original order, the Obama FCC had classified broadband as a so-called Title II utility-like service, which gave the FCC greater authority and oversight over broadband networks. 

Pai's FCC took what it called a "light regulatory" approach and pushed through the Restoring Internet Freedom Order, which not only repealed the rules but also abdicated much of the FCC's authority to the Federal Trade Commission. 

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.

Supporters of net neutrality say rules are necessary to ensure broadband companies aren't abusing their power as gatekeepers. But the FCC and broadband companies say the old rules gave the FCC too much power, stifling broadband investment.

Pai argues that the repeal of the rules has fixed that. In the two and half years since the repeal took effect, he has claimed that investment in broadband has increased. But earnings reports, independent research and statements from broadband company CEOs show no clear evidence that the repeal had any effect on investment in the broadband sector.

There's also no clear evidence that any of the doomsday predictions from net neutrality proponents have come to fruition. Broadband prices haven't skyrocketed, nor have internet providers blocked or slowed access to content. In fact, network speeds across the vast majority of the country have increased. And broadband networks in the US have held up well under the pressures of increased network demands due to everyone working from home and children across the nation attending school virtually amid the COVID-19 pandemic. 

But this isn't to say that there aren't significant issues. Tens of millions of people are still without access to service at all, and many millions can't afford service. Net neutrality regulations on their own won't fix these issues, but supporters say reinstating the FCC's authority over broadband companies is still essential. 

"This debate has always been about the FCC's authority," said Gigi Sohn, a distinguished fellow at the Georgetown Law Institute for Technology Law & Policy and former counselor for the Federal Communications Commission. "The question is really about whether there should be an agency to oversee the broadband market. In order to promote competition and ensure millions of Americans can get online through programs like Lifeline, the answer to that question is yes."

There's almost unanimous agreement among experts that the FCC under Biden will reinstate net neutrality protections. The real questions are how quickly will they do it and how far will they go in terms of the limits they put on broadband providers.  

The two top names that have been floated as potential chairs of the agency, Commissioner Jessica Rosenworcel and former commissioner and former interim FCC chair Mignon Clyburn, were staunch supporters of the 2015 protections. Sohn, who served as an adviser to former FCC Chairman Wheeler, has also been floated as a potential candidate for the job. 

Watch this: Beer helps explain battle brewing over net neutrality

Net neutrality protections have enjoyed strong public support. Millions of Americans protested the Pai FCC's order to dismantle net neutrality. The bipartisan grassroots effort was also enough to persuade a majority of senators to vote to roll back the repeal effort. Organizations like Fight for the Future have vowed to continue their campaign to put pressure on officials to get net neutrality protections back on the books. 

The timing of these efforts is a little harder to pin down. There are five seats in total on the FCC. Three of those seats will go to Democrats, while two are reserved for Republicans. With Pai's departure in January, there will be two seats vacant on the commission. Trump pulled the renomination earlier this year of Commissioner Michael O'Rielly, a Republican, because he expressed concern over Trump's insistence that the FCC clarify rules around Section 230 of the Communications Decency Act to limit liability protections for social media companies. 

O'Rielly's term expires at the end of the year. Without Pai and O'Rielly, the FCC on Inauguration Day will be 2-1 Democrats to Republican. But Trump has already nominated a replacement for O'Rielly, Nathan Simington.  If the Senate confirms him before the end of the year, the FCC will be deadlocked 2-2. This could delay any FCC action on net neutrality until Democrats can get another commissioner confirmed, which will likely take months. 

Even with the needed Democratic votes on the FCC, the process to write and approve new rules won't be a quick process. And the earliest that rules could be voted on is next summer.

How far will new rules go?

The bigger question is likely whether Democrats will go beyond the restrictions laid out in the 2015 rules and whether they push to expand the FCC's Title II authority beyond what had been called for five years ago. Net neutrality supporters agree that the net neutrality written by the next FCC will go beyond adopting the bright-lines rules of no blocking, no throttling and no paid prioritization that were outlined in the 2015 rules. 

"I'm not advocating for just reinstating the old rules," Sohn said. "We need to push for FCC authority to adopt policy to handle issues like zero-rating and data caps." 

Sohn said that since the 2015 fight, the bar has been raised. The standard isn't the 2015 FCC rules, but instead policy makers will be looking at California's stricter 2018 law, which goes beyond the Obama-era rules. California's net neutrality legislation outlaws some zero-rating offers, such as promotions offered by AT&T, which exempts its own streaming services from its wireless customers' data caps. Zero-rating is the practice of bundling access to certain content or services for free as part of broadband service.

The California law also applies net neutrality rules to so-called "interconnection" deals between network operators, something the FCC's 2015 rules didn't explicitly do.

The FCC could also use the Title II authority to ban or put restrictions on 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. 

"The genius of the successful 2015 Open Internet Order was that it preserved the FCC's authority to examine all kinds of ISP interference and discrimination, not just bad conduct outlined in the bright-line rules," said Matt Wood, vice president of policy and general counsel for Free Press.

He pointed to Comcast's announcement last month that it plans to reintroduce data caps on its cable broadband service as an example of how broadband companies are feeling emboldened without net neutrality protections and FCC oversight. 

"Preserving FCC ability to craft flexible protections against unjust and unreasonable behavior is key, no matter how it chooses to address these other issues in rules or future orders," he added.

What about legal challenges and Congress?

As we've seen with 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. 

The only way to finally put the issue to rest would be for Congress to act. 

"Legislation has always been the only way to resolve this pointless, largely theatrical debate," said Berin Szoka, a senior fellow at TechFreedom, a free-market think tank. 

But whether this will actually happen largely depends on which party gains control of the Senate. That won't be known until Jan. 5, after Georgia holds runoff races for its two US Senate seats. If Republicans maintain control of the Senate, that would make it very difficult for a net neutrality bill to pass both the Democrat-controlled House and the Republican-led Senate. 

If Democrats win in Georgia and take control of the Senate, chances of a net neutrality bill giving the FCC clear authority would be more likely to pass. But one thing is certain: 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.