OPINION: Net neutrality is still needed despite its quiet hiatus

The debate around “net neutrality” is back, only this time there is even less chance that the matter will be settled for good. You’re right to feel exhausted — and more than a little frustrated.

While few would claim, or desire, to be telecommunications policy experts, many will have heard of net neutrality. It is, as author Cory Doctorow put it, “the idea that your internet service provider should send you the bits you request as quickly and reliably as it can.” The opposite is net discrimination — different apps and services being favored over others. Maybe poorer consumers lose out, or companies are forced to pay for priority, harming competition.

The last time there was a significant change to net neutrality was in 2018, when Ajit Pai, the Trump-appointed chair of the Federal Communications Commission, took considerable delight in throwing it out in the face of unprecedented consumer backlash. Reflecting on the decision earlier this year, he mocked the outrage: “Do you remember where you were five years ago today, on June 11, 2018?” he wrote. “I’d be surprised if you don’t. For that was the day the internet ended.”

Smarm aside, he had a point. Awkwardly, for the legions of net neutrality advocates — most notably John Oliver, whose blistering commentary brought the matter to the fore — not much noticeable happened when net neutrality was supposedly abolished that day. ISPs didn’t create fast and slow lanes on the internet. Pay-per-view fees didn’t crop up for popular applications. Marginalized groups didn’t face censorship and discrimination (at least, not because of this).

So when the Biden administration’s FCC announced last week that it was seeking to reinstate net neutrality, opponents accused the regulator of wasting time and money. After all, ISPs have been extremely well-behaved since it went away, right? “None of the Apocalyptic predictions came to pass,” wrote a dissenting FCC commissioner, Brendan Carr. “Quite the opposite.”

But while the furor over net neutrality seemed overblown in retrospect, that’s no reason to discredit the Biden administration’s fresh desire to bring it back. Consumers’ online rights still need protection, and restoring it for an open internet is worthwhile.

Those pointing to ISPs’ “good behavior” are being disingenuous at best. The 2018 decision to reverse the FCC’s earlier net neutrality rule was being challenged in court until 2020, by which point several states, such as California, had set up or had in motion their own net neutrality regulations in the absence of a federal one. The patchwork of rules has placed ISPs in regulatory limbo for six years: “Good behavior” was the only practical option available — and calling it that is maybe a stretch.

During the pandemic, the FCC had to rely on voluntary pledges from ISPs to keep people connected in the crisis — but many were still disconnected, noted Raza Panjwani from New America’s Open Technology Institute. Onerous data caps were temporarily dropped to support the surge of at-home working but soon replaced long before people started going back to the office en masse.

Today, the government lacks the ability to thoroughly and consistently measure how ISPs are performing, so we don’t have a full picture of how Americans are being served, according to Harold Feld, senior vice president at Public Knowledge, a consumer advocacy group.

A return to the so-called Title II classification, in which broadband access is regulated like utilities such as water and gas, would help address much of the above, which is why President Joe Biden has made it a priority. Claims from broadband industry groups that investment would suddenly dry up ring hollow: Investment increased after net neutrality laws were put in place in 2015 — and besides, it’s technological advancement, and consumer demand to use bandwidth-hungry services like Netflix, that spurs investment.

But Carr and other opponents are right on one question: whether the FCC will ultimately have the authority to do what it wants. In a legal analysis published last month, two former Obama administration solicitors general argued that the matter would be challenged up to the conservative-leaning Supreme Court, which has of late displayed an eagerness to “wield the major questions doctrine to limit agency discretion.” In other words, it seems likely the court would decide reclassifying broadband is a matter so important it should be handled by Congress.

While that analysis was funded by broadband industry trade groups, its warnings are fair. The FCC is heading for a time-consuming legal confrontation. The route to truly enshrining an open internet is through new legislation — only then will net neutrality be protected for good and both sides can stop whipping themselves into a frenzy with each new administration.

Dave Lee is Bloomberg Opinion’s US technology columnist.

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