This is something I think we can all agree on. Federal Communications Commission (FCC) Chairman Ajit Pai agrees, and has stated he favors a free and open Internet. There should be rules in place that ensure a free and open Internet, and there have been in the past.
The FCC released the 2005 Internet Policy Statement where it outlined four principles to encourage broadband deployment and preserve and promote the open and interconnected nature of the public Internet. However, these four principles were not law. In 2008, the FCC released a decision where Comcast was required to disclose its network management practices, and Comcast challenged this in court. In 2010, the courts ended up ruling that the FCC had no jurisdiction over the 2005 Policy Statement. Thus, there became a need for new rules.
In 2010, the FCC codified net neutrality in the Open Internet Order of 2010. The FCC based its authority on Title I. The new rules embodied four core principles: transparency, no blocking, no unreasonable discrimination, and reasonable network management. In 2011, Verizon sued the FCC, arguing that the FCC was exceeding their authority. In 2014, the courts struck down the “No blocking” and “No unreasonable discrimination” rules of the order. Once again, there became a need for new rules.
The FCC was unsuccessful in enforcing net neutrality rules because they were applying Title II regulations to services classified as Title I. Title I doesn’t specify any concrete regulatory guidelines, but the FCC can take various interpretation of different approvals in Congress until someone challenges them in court. When the FCC did take ISPs accountable to violating these rules, they were challenged in court and lost.
The new strategy was to reclassify ISPs under Title II. They never really wanted to do this, but in a way, the hands of the FCC were forced. Reclassifying ISPs as Title II, means ISPs can be regulated like monopolies. ISPs really hate this, as it opens up the door for increased government regulation. The 2015 Open Internet Order reclassified ISPs under Title II while at the same time releasing them from certain Title II obligations. The order also re-established net neutrality rules.
Can you guess the next part in this saga? Yes, net neutrality rules were struck down once again, but not by ISPs fighting the FCC in the courts. This time is was from FCC itself after an administration change. When the FCC’s Restoring Internet Freedom Order went into effect in 2018, it reverted classifying ISPs back to Title I, thus nullifying existing net neutrality rules.
This leaves us once again with no rules preventing ISPs from blocking or throttling Internet traffic. ISPs will also be able to charge websites and online services for faster and more reliable network access. The FCC will be working together with the Federal Trade Commission (FTC) in protecting net neutrality for consumers. Essentially, they will only be able to enforce the promises ISPs have created on their own.
I do understand that classifying ISPs under Title II may be too heavy-handed and open the door to increased FCC control over the Internet in the future, even if this isn’t the original intent. History has shown that policies on this issue are too prone to flip-flopping, and a more stable solution is needed. The best solution should be a law made from Congress that simply enshrines net neutrality rules, while keeping ISPs classified under Title I. We do not want to leave this important issue in the hands of the FCC, or on promises from ISPs. Let’s elevate this issue to Congress and support legislation that forbids blocking, throttling, and paid prioritization on the Internet.