Net Neutrality Officially Dies Any Day Now. It May Get a Second Life.

FCC Chairman Ajit Pai

FCC Chairman Ajit Pai Jacquelyn Martin/AP

Public sentiment is changing faster than FCC rule-making.

Net neutrality is dead. The rules governing today’s internet, known as the 2015 Open Internet Order, will be lifted any day now. It will mark the first time the U.S. has gone without some form of net neutrality since the 1990s.

The changes come after the Federal Communication Commission voted to repeal them along party lines last December. Verizon, AT&T, Comcast and other internet service providers can now choose to block, slow, or otherwise discriminate against content and services (such as AT&Ts blocking of Apple’s FaceTime in 2012), as well as charge for “Fast lanes,” or preferential treatment such as higher download speeds.

FCC chairman and former Verizon lawyer Ajit Pai wrote rules in their place that only require internet service providers disclose their practices, while leaving enforcement up to the Federal Trade Commission for violations of “truth in advertising.” The reasoning?

A “freer and more open Internet,” Pai argued in his proposal of the new rules. The change would allow customers to “buy the service plan that’s best for them and entrepreneurs and other small businesses can have the technical information they need to innovate.” Pai insists that his vision will prompt investment in broadband networks.

Critics call this a fantasy. Telecom industry CEOs have admitted they do not change their investment plans based on net neutrality rules, and have shown no inclination to invest windfall profits when rules were changed in the past. Moreover, there are few competitive markets for broadband in the U.S. Some 56 million households in the US have no choice of broadband providers, and many lack broadband access entirely, the FCC estimates. Telecoms have successfully lobbied to prohibit cities from building their own public high-speed internet, and small ISPs are scarce. That deters existing players from new investments to win, or retain, customers.

In 2005, a Verizon spokesman said net neutrality principles would not stall investments in their network (“Our plans haven’t changed“). In December 2015, AT&T’s CEO told investors the FCC’s decision to reclassify the company’s internet service as a utility under Obama-era rules (Title II) would not hinder future business plans. He later amended this in a January 2016 earnings call, saying that the new rules were “suppressive to [industry] investment.” Yet AT&T’s infrastructure spending rose 4.5% in 2016 over 2014. Even Jonathan Banks, a law and policy expert at U.S. Telecom, didn’t evince much confidence that net neutrality would deliver on Pai’s promises in an interview with Quartz last year. “The proof of it will be if we really do see investment go up or more broadband pushed out in rural areas,” he said.

What happens to net neutrality now?

Despite the FCC giving internet providers free reign, immediate changes aren’t likely. ISPs are still pledging to uphold net neutrality principles, states the U.S. Telecom trade association, even if their precise definition keeps changing. As Quartz reported last December, predictions of what will happen next are all over the map based on a survey of more than a dozen experts.

“What we will see,” said Chris Riley, the director of public policy at Mozilla, “is a slow build up of restrictions and fees.” He predicts ISPs will strike deals with providers such as Netflix to pay for faster speeds, potentially raising prices for customers, and slower service may become the norm for companies that refuse to pay. New startups relying on zippy connections, but unable to pay ISPs for fast access, may never even start on such an uneven playing field. After that, it’s anyone’s guess.

But public sentiment is changing faster than FCC rule-making, and it’s breaking in favor of restoring net neutrality. In March, the University of Maryland surveyed 997 registered voters to gauge their sentiments on the issue. 1 Net neutrality was astonishingly popular: 86% of all voters opposed to repealing it. That sentiment cut across party lines, and only increased over time: Republican opposition to repeal jumped 10% since December.

States have also forged ahead with their own rules, seeking to force ISPs to adhere to net neutrality criteria to win government contracts, or even conduct business in the state. Many of these are bundled with privacy regulations. Along with lifting net neutrality rules, the FCC voted to allow ISPs to track users individuals’ browser history and sell it third-parties or target advertising.

Washington state passed a bill March 5 that makes it illegal for ISPs to block or throttle websites and online services. California is next. The 800-pound gorilla in the net neutrality fight, second only to the federal government in terms of influence given the state’s huge market, passed a bill in a committee vote last week that is even more stringent the federal rules. In response, Comcast and AT&T have deemed it “very problematic.” Cities are acting as well. Mayors in New York, San Francisco, Baltimore, Minneapolis, St. Louis, among others have signed “open internet pledges” forcing internet providers that do business with them to follow strong net neutrality principles. In all, at least two state legislatures, five governors and a dozen mayors who have issued bills, executive orders or pledges to enforce net neutrality.

Finally, Congress itself is moving to rebuke the FCC later this year. The once obscure Congressional Review Act is now being deployed to overturn the agency’s regulations. It was last used in 2017 in an unprecedented legislative maneuver by the Republican Congress to overturn 14 Obama-era rules that ranged from EPA stream protection regulations to an FCC ban on selling customers’ browser history. Congress has about sixty days after an agency ruling to overturn it with a simply majority in the House and Senates. For the ISPs, this represents the nuclear option. If a Congressional Review Act measure passes, it will not only re-instates the Obama-era version of net neutrality, but prohibit the FCC from taking similar actions in the future.

Timothy Karr of Free Press says there’s already a majority in the Senate to pass the bill, and one is building in the House. Of course, it must still get president Trump’s signature. Given the popularity of the bill, and Trump’s polling as one of the most unpopular presidents in U.S. history, it may have a shot.

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