The FCC has reversed a 2015 rule that could change how you access and pay for internet service
- The FCC voted to remove the 2015 Open Internet Order, which governed internet service providers as communication service providers.
- It required internet service providers to treat all internet traffic as equal.
- Now telecommunications and cable companies will be allowed to price various online activities that use bandwidth at different rates.
The FCC voted on Thursday to eliminate the Open Internet Order, better known as “net neutrality” regulations.
The decision will give more power to internet service providers (ISPs) to set pricing and prioritize different types of internet traffic.
“For those of you out there who are fearful about what tomorrow will bring, take a deep breath; this decision will not break the internet,” FCC Commissioner Michael O’Rielly said. “While repealing net neutrality rules grabs headlines … net neutrality started as a consumer issue but soon became a stepping stone to impose vastly more common carrier regulation on broadband companies.”
The Open Internet Order, which was set in place during President Barack Obama’s administration in 2015, required telecommunications and cable companies to treat all online traffic as equal.
Republicans say taking an egalitarian approach discourages ISPs from investing in better infrastructure and technologies to improve the internet. It may also make it harder for smaller ISPs to gain ground. The FCC is currently led by Chairman Ajit Pai, who was appointed to that role by President Donald Trump.
“Title II did not create the open internet, and Title II is not the way to maintain it,” FCC commissioner Brendan Carr said. “After a two-year detour, one that has seen investment decline, broadband deployments put on hold, and innovative new offerings shelved, it’s great to see the FCC returning to this proven regulatory approach.” Carr pointed to the free and open internet that existed before the 2015 Open Internet Order as proof the changes will be successful.
Net neutrality proponents, including many large internet companies, argue that allowing ISPs to prioritize internet traffic differently may drive ISPs to charge more for various activities. For example, because streaming video takes up more bandwidth than reading text-based sites, companies could charge more. Removing the regulations may also allow ISPs to stifle services that compete with their own, including over-the-top streaming platforms such as Netflix.
The FCC commissioners were widely split on the decision. O’Rielly and Carr voted to rescind the Open Internet Order, while commissioners Mignon Clyburn and Jessica Rosenworcel made strongly worded arguments against rescinding it.
“What saddens me the most today is that the agency that is supposed to protect you is actually abandoning you, but what I am pleased to be able to say today is that the fight to save net neutrality does not end today,” Clyburn said. “The agency does not have the final word. Thank goodness for that.”
“I dissent from the corrupt process that has brought us to this point, and I dissent from the contempt this agency has shown our citizens in pursuing this path today,” FCC commissioner Jessica Rosenworcel said. “This decision put this Federal Communications Commission on the wrong side of history, the wrong side of the law, and the wrong side of the American public. The future of the internet is the future of everything. … I believe it is essential that we sustain this foundation of openness, and that is why I support net neutrality.”
Rosenworcel said ISPs will get the power to block websites, throttle content and encourage pay-for-play arrangements with partners while limiting others to “a slow and bumpy road.” “Know this: They have the technical ability and business incentive to discriminate and manipulate your internet traffic, and now this agency gives them the legal green light to go ahead and do so. This is not good. Not good for consumers, not good for business, not good for anyone who connects and creates online.”
FCC chairman Ajit Pai broke the tie, voting in favor of moving back ISPs under Title I classification.
“The internet is the greatest free-market innovation in history,” Pai said. “If our rules deter a massive infrastructure investment that we need, eventually we will pay the price in terms of less innovation. … It is time for us to restore internet freedom.”
Today’s vote undoes all of that. It removes the Title II designation, preventing the FCC from putting tough net neutrality rules in place even if it wanted to. And, it turns out, the Republicans now in charge of the FCC really don’t want to. The new rules largely don’t prevent internet providers from doing anything. They can block, throttle, and prioritize content if they wish to. The only real rule is that they have to publicly state that they’re going to do it.
Opponents of net neutrality argue that the rules were never needed in the first place, because the internet has been doing just fine. “The internet wasn’t broken in 2015. We were not living in some digital dystopia,” commission chairman Ajit Pai said today. “The main problem consumers have with the internet is not and has never been that their internet provider is blocking access to content. It’s been that they don’t have access at all.”
While that may broadly be true, it’s false to say that all of the harms these rules were preventing are imagined: even with the rules in place, we saw companies block their customers from accessing competing apps, and we saw companies implement policies that clearly advantage some internet services over others. Without any rules in place, they’ll have free rein to do that to an even greater extent.
READ THE DISSENTING STATEMENTS OF THE DEMOCRATIC FCC COMMISSIONERS
Supporters of net neutrality have long argued that, without these rules, internet providers will be able to control traffic in all kinds of anti-competitive ways. Many internet providers now own content companies (see Comcast and NBCUniversal), and they may seek to advantage their own content in order to get more eyes on it, ultimately making it more valuable. Meanwhile, existing behaviors like zero-rating (where certain services don’t count toward your data cap) already encourage usage of some programs over others. If during the early days of Netflix, you were free to stream your phone carrier’s movie service instead, we might not have the transformational TV and movie company it’s turned into today.
One of the two Democrats on the commission, Jessica Rosenworcel, called today’s vote a “rash decision” that puts the FCC “on the wrong side of history, the wrong side of the law, and the wrong side of the American public.” This vote, Rosenworcel says, gives internet providers the “green light to go ahead” and “discriminate and manipulate your internet traffic,” something she says they have a business incentive to do.
“ This is not good,” Rosenworcel says. “Not good for consumers. Not good for businesses. Not good for anyone who connects and creates online.”
Commissioner Clyburn, the other Democrat, said the implications of today’s vote are “particularly damning … for marginalized groups, like communities of color, that rely on platforms like the internet to communicate.” No one will be able to stop internet providers if they allow the social media services these groups rely on to slow down, blocking the dissemination of information, Clyburn said.
WHAT PUBLIC LIBRARIES WILL LOSE WITHOUT NET NEUTRALITY
Both Rosenworcel and Clyburn also criticized the FCC’s handling of the public comment period that proceeded this vote, saying that the administration acted inappropriately in ignoring millions of voices in support of net neutrality. “It is abundantly clear why we see so much bad process with this item: because the fix was already in,” Clyburn said. Rosenworcel said the commission showed a “cavalier disregard” for the public and a “contempt” for citizens speaking up.
The vote comes after a contentious and messy public comment period. After opening the proposal up for feedback earlier this year, the commission received a record-breaking 22 million comments. But many of those comments were spam — 7.5 million, according to the commission — and the FCC has refused to help investigations into what happened. The commission was also quiet about website problems that caused its comment form to crash briefly in May.
Those comments are likely to play a role in whatever lawsuit hits following this vote. Net neutrality supporters are almost certain to sue the commission in an attempt to invalidate this proceeding and restore the 2015 net neutrality rules. While the commission is allowed to change its mind, it isn’t allowed to change rules for “arbitrary and capricious” reasons. In court, the FCC will have to prove that enough has changed since 2015, and that there’s enough evidence in the record of comments, to back up the conclusion that it ought to revoke net neutrality.
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Since the beginning of this proceeding, the commission has made it very clear that it isn’t really interested in most public comments either, despite a requirement to accept and consider them. The commission has stated time and again that it only values legal arguments, so we may see complaints that millions of consumer comments were ignored. Even if they don’t include the spam, the net neutrality proceeding was still the most commented ever at the commission.
This is the first time in more than a decade that the FCC has actually been opposed to net neutrality. The FCC has been promoting open internet rules since the mid-2000s, though it wasn’t until 2010 that they were turned into formal regulations. In 2014, those were overturned in court after the FCC was sued by Verizon. The court said that the FCC could try again using Title II, and so it did that in 2015. Those rules, which have been in place for two years, are the ones getting overturned today.
The vote ran over an hour, with extensive speeches from the five commissioners, particularly from the two dissenting Democrats. In a highly unusual moment, the commission’s meeting room was evacuated briefly “on advice of security.” Cameras that remained on and streaming showed dogs being brought in to search the room.
Now that the vote is over, the commission will take a few weeks to make final adjustments to the rules. They’ll then be filed with the Federal Register and appear there in a few months. At that point, net neutrality will officially be off the books, and these new rules (or really, the absence of any) will take effect.
So what can you expect to change now that net neutrality is over? Not all that much — not overnight, at least. Rather than large swaths of the internet suddenly becoming unavailable or only offered for a fee, internet providers will likely continue to explore subtler methods of advantaging themselves and their partners, like offering data to use certain services for free or speeding up delivery of their own content.
These are things that may initially sound good. But in the long run, they disadvantage upstarts that don’t have the money to pay up. The problem is that, eventually, we may not know what products and services we missed out on because they never made it through the mess.