A couple of observations first:
The history of Net Neutrality shows that this is actually a set of principles that have been supported by both sides of the aisle. Yes, Net Neutrality principles have been supported by both Republicans and Democrats! Despite the escalating rhetoric in recent years and the flip flopping between Title I and Title II jurisdiction, there is actually a lot of agreement on quite a few of the basic principles. Everyone just needs to calm down.
2004: What we now call Net Neutrality began under FCC Chairman Michael Powell, a Republican, who put forward an "Internet Policy Statement" in 2004 that contained four Internet freedoms: (1) The freedom to access lawful content; (2) the freedom to use applications; (3) the freedom to attach personal devices to the network; and (4) the freedom to obtain your service plan information. In hindsight, there is a lot of violent agreement that these are sensible principles for the Internet. Some of them came from the telecommunications world, but this is all pretty sensible stuff. Note that these were voluntary principles, not FCC rules or regulations.
2010: In 2010, under FCC Chairman Julius Genachowski, a Democrat, an Open Internet Order was issued that imposed three major rules: (1) transparency; (2) no blocking; (3) no unreasonable discrimination; and (4) a complementary principle of reasonable network management. The Genachowski Commission relied on Section 706 of the Telecom Act of 1996, an amendment to the Communications Act of 1934, both of which predates much of today's modern communications and Internet technologies.
2014: In 2007, cable subscribers found that Comcast was interfering with their use of peer-to-peer networking apps, for example BitTorrent. In Comcast Corp. v. FCC, the US Court of Appeals, DC Circuit holds that the FCC does not have ancillary jurisdiction over the reasonable network management practices of Internet Service Providers like Comcast under the Communications Act of 1934. So this pretty much put the 2010 Open Internet Order in jeopardy because the FCC has limited authority to tell Internet service providers what they can and cannot do.
2015: In 2015, FCC Chairman Tom Wheeler, a Democrat, took it upon himself to "try, try again." The Wheeler Commission reclassified ISPs as Title II Common Carriers (traditionally telephone companies), a group of regulated utilities that the FCC definitely has clear jurisdiction over under the 1934 Communications Act, as amended. The Wheeler Commission then declined to impose the entire regulatory panoply of telephone regulations on the protesting ISPs, and put in place the following in his Protecting and Promoting the Open Internet Order:
"There are three simple keys to our broadband future. Broadband networks must be fast. Broadband networks must be fair. Broadband networks must be open." FCC Chairman Tom Wheeler
Three Bright Line Rules:
No Blocking. ISPs may not block access to legal content, applications (apps), services or non-harmful devices, subject to reasonable network management.
No Throttling. ISPs may not impair or degrade lawful Internet traffic on the basis of content, apps, services, or non-harmful devices, subject to reasonable network management.
No Paid Prioritization. ISPs may not favor some lawful Internet traffic over other lawful traffic in exchange of consideration of any kind (e.g. money, bartered services or goods, etc.). It bans ISPs from prioritizing content and services of its own affiliates, which would be detrimental to non-affiliated competitors.
Also, the General Conduct Standard said that ISPs cannot unreasonably interfere with or unreasonably disadvantage the ability of users to select, access, or use the lawful content, apps, services or devices of their choosing, or of edge providers to make lawful content, apps, services or devices available to consumers. An Enhanced Transparency Rule decreed that ISPs must disclose in consistent format its promotional rates, fees, surcharges and data caps. Finally the Wheeler Commission reclassified mobile broadband Internet access service as a commercial mobile service.
2016: In US Telecom Ass'n v. FCC, the US Court of Appeals, DC Circuit, upheld the FCC's 2015 decision in all respects, finding that the agency's actions were reasonable and supported by the record.
"The plan to restore Internet freedom will bring back the same legal framework that was governing the Internet three years ago today and that has governed the Internet for most of its existence. . . Until 2015, the FCC treated high-speed Internet access as a lightly-regulated “information service” under Title I of the Communications Act. A few years ago, the Obama Administration instructed the FCC to change course. And it did, on a party-line vote in 2015; it classified Internet access as a heavily-regulated “telecommunications service” under Title II of the Communications Act. If the plan is adopted on December 14, we’ll simply reverse the FCC’s 2015 decision and go back to the pre-2015 Title I framework." FCC Chairman Ajit Pai
2018: FCC Chairman Ajit Pai, a Republican, puts up a "Restoring Internet Freedom Order" and this January 4, 2018 Order (voted in 3-2 on party lines) removes most of the 2015 Wheeler era rules. It re-categorizes ISPs as Title I information service providers, and reverses the Wheeler Commission's reclassification of ISPs as Title II common carriers. This Order:
- Reclassifies Broadband Internet Access Service ("BIAS") as a Title I information service not a Title II common carrier service, finding investment was down under the 2015 regime and Title II style regulation is costly.
- Reinstated the determination that mobile BIAS is not a commercial mobile service.
- Relies on Federal Trade Commission (FTC) and antitrust laws to protect consumers; returns jurisdiction to regulate broadband policy and data security to the FTC.
- Preempts inconsistent state and local regulation, saying BIAS primarily should be regulated by a uniform set of federal regulations.
There was much fury and outcry about the 2018 Restoring Internet Freedom Order. In my next blog installment on Net Neutrality, I will describe the state's reactions to the Pai Order.
