FCC Prepares To Restore Net Neutrality, But The New Rules Might Be Weaker Than The Ones Discarded By Trump

The FCC has announced that it will vote to restore the net neutrality rules stripped away by the Trump administration during an agency meeting on April 25.

A reminder: net neutrality rules prevent giant telecoms from abusing their market power to disadvantage competitors and consumers alike. Either by degrading the performance of a service that competes with a telecom’s own offerings; or by preventing ISPs from charging consumers more money to access specific services and apps that have struck cozy deals with giant ISPs.

While years of debate have muddied the goal, the rules are a sloppy but necessary attempt to ensure level competition across U.S. broadband networks. With the vote, the FCC also intends to restore its Title II authority over broadband providers stripped away by Trump Incorporated (an effort you might recall involved no shortage of bullshit and fraud by telecoms and the GOP).

“A return to the FCC’s overwhelmingly popular and court-approved standard of net neutrality will allow the agency to serve once again as a strong consumer advocate of an open internet,” FCC boss Jessica Rosenworcel said in a statement.

As always, there’s a catch: Stanford Law Professor and net neutrality guru Barbara van Schewick notes the new rules are technically weaker than the ones stripped away by the Trump administration, with several loopholes apparently lobbied for by industry (her FCC filing has more detail). My email inbox is filled with consumer groups lauding the move, yet none of them apparently thought this was worth a mention.

The 2015 rules already went well out of their way to “forbear” (render inapplicable) vast swaths of the Telecom Act that usually apply to utilities, because the telecom industry is absolutely terrified that the FCC could ever use rate regulation to cap their exploitative market rates (that’s never actually been a problem, as the FCC has never really had the political backbone to seriously challenge industry).

The loopholes could give ISPs leeway to engage in all manner of dodgy behavior on subjects like throttling (remember when AT&T imposed an invisible cap, harassed and throttled the connections of users who crossed it, then lied about it repeatedly?) and interconnection (remember when Verizon and Comcast intentionally slowed everybody’s Netflix traffic to force Netflix to pay more for interconnection?).

van Schewick also expressed concerns that the FCC’s rules could pre-empt tougher state-level net neutrality rules in the seven states that have passed state level net neutrality protections (California, Colorado, Maine, New Jersey, Oregon, Vermont and Washington).

Every so often you’ll see somebody advertise their ignorance by insisting the original net neutrality rules must not have mattered because the internet didn’t immediately explode after the repeal. That ignores the fact that ISPs largely behaved because a swath of states (including much of the west coast) implemented their own state-level protections that ISP lawyers failed to successfully undermine.

It’s possible these loopholes could be addressed before the April 25 meeting.

But I suspect they may not be, and the politically timid Rosenworcel FCC would simply like this whole effort to be in the rear-view mirror. At which point you’ll never see the agency so much as mention (much less enforce) the rules, unless an ISP engages in the kind of ham-fisted, ridiculous behavior they’d probably have avoided in the first place (like, say, just overtly blocking a direct competitor’s service).

The irony of course is that even with loopholes likely built for and by industry, the telecom industry and GOP are already gnashing their teeth in synchronicity, falsely claiming the rules are a radical power grab aimed at stifling innovation and network investment. Their ideal world is unchecked authority for big companies like AT&T and Comcast to literally do whatever they’d like, to whomever they’d like.

My skepticism isn’t to say the broader fight over FCC authority doesn’t matter. The restoration of Title II reclassification restores much of the FCC’s consumer protection authority stripped away by the Trump administration.

For now.

The rules, as they were by Trump, can simply be gutted again by the next telecom-industry-cozy administration that secures control of the FCC. The Supreme Court’s looming plan to turn all U.S. regulators into the equivalent of decorative gourds could also undermine the efforts.

Ideally you’d have Congress enshrine basic net neutrality protections into law, but much like our nonexistent internet-era privacy law, it’s much too corrupt to ever actually do that. So instead you get this sort of oversight simulacrum and multi-decade game of regulatory patty cake.

With basic regulatory autonomy on the ropes, I tend to think broadband policymakers need to focus their fire. Namely at the politically powerful telecom giants tethered to our domestic surveillance systems that have monopolized broadband access across much of the U.S., resulting in expensive, spotty, substandard access. And the grotesquely feckless and corrupt regulators and lawmakers that make this possible.

The Trump FCC and GOP did everything in its power to coddle and protect companies like Comcast and AT&T. The Biden FCC puts on a good show about caring about these issues, but can’t even candidly acknowledge that telecom monopolization is a real problem in public facing statements, much less propose meaningful solutions (like strong, vocal support for community broadband networks).

The FCC at this point has been so hammered by regulatory capture, lobbying, and dodgy court rulings that it’s largely become irrelevant on issues of meaningful consumer protection. Its reputation is so shaky, even the Biden admin didn’t trust it to manage the $42.5 billion in broadband subsidies included in the infrastructure bill, instead offloading that responsibility to the NTIA and the states.

Most of the Biden FCC’s consumer protection efforts have been years late, performative, and heavily decorative, and I suspect the agency’s renewed interest in net neutrality will be no exception. That’s not to say it won’t be an improvement over Trumpism, but when it comes to federal broadband policy making, AT&T, Comcast, Verizon and friends always get what they want in the end, something that’s simply not going to change until we take creative, aggressive aim at corruption and regulatory capture.