The net neutrality fight isn't over, even after the repeal

On June 11th, the Federal Communications Commission repealed rules protecting net neutrality. These rules prevented private internet service providers from engaging in such practices as speeding up or slowing down traffic to specific websites, blocking access to law-abiding websites, or offering faster speeds to sites or users who pay them for the privilege. For example, an ISP like Comcast or Time Warner couldn't force you to pay an extra fee to stream Netflix in full HD like some cellular carriers already do. They also couldn't block entire sites for basic plans and force you to pay for a higher-priced package to access them. If you had a 100 megabit per second plan, the ISPs couldn’t have a say in how you used those 100 megabits so long as you weren’t breaking the law.

It’s been more than three months since those protections were repealed, but has anything changed? There are no longer rules in place that could hold ISPs legally responsible for violating net neutrality, but that doesn’t mean all of them are guaranteed to do so—any more than making public nudity legal would result in everyone going out to shop naked immediately. Comcast proclaims on its Xfinity website that it “[does] not block, slow down or discriminate against lawful content,” and is “for sustainable and legally enforceable net neutrality protections for our customers.” But that's an awfully odd thing to say from a company that recently helped repeal legal enforcement of net neutrality.

Post-neutrality America so far

The honest answer is that we don’t know what, if anything, has changed yet. It’s very difficult to reliably determine if content is being prioritized or throttled as ISPs currently aren’t required to disclose such practices. Here in the US, we haven’t seen a rollout of tiered pricing for internet plans, but Portugal has. Over there, you can be charged an extra monthly fee for video streaming, social media, and even email access. And if it could happen there, it could happen here.

The idea that looser rules will mean more options for consumers is dubious.

FCC chairman Ajit Pai and critics of net neutrality claim that it stifles innovation, reduces investment in the internet, and disproportionately harms smaller ISPs. In the world they claim to want, everyone would have many different ISP choices to shop around among, with each having full freedom over what kind of service they sell. In theory, this would discourage ISPs from nickel-and-diming us or blocking and throttling content because they would be in danger of losing customers.

Source: Free Press.

What they’re actually proposing, though, is giving anyone who owns or wants to start an ISP the ability to engage in consumer-unfriendly practices like throttling and tiered packages—getting more money out of you for the same or worse access than you have right now—to make more money for their shareholders. It’s a case of being allowed to pick your poison and hoping competing poisoners will try to woo you with less potent poisons, rather than saying you can’t poison people at all. And as for whether or not we should take Comcast at its word that it won't throttle or block sites: protesting loudly against a rule you say you don’t plan to break is kind of an odd look, as I mentioned. If I claim I never want to steal cherry oat bars from Starbucks, but spend millions of dollars lobbying to remove the legal consequences of doing so, what would that make you assume about my intentions?

The idea that looser rules will mean more options for consumers is dubious, too, as many ISPs already have local monopolies or oligopolies. Where I live in Denver area, I have a choice between two ISPs and only one that offers the speeds I need to stream and upload video for my job. So if that one ISP decided to start charging me extra for tiered service, I would have little choice but to pay up. For most reading this, the internet is a necessity of everyday professional and personal life. Imagine streamers, YouTubers, or anyone who runs an internet business having no choice but to cough up extra cash every month to Comcast—it's just less money for them, more for a huge corporation that can exploit their needs.

Is net neutrality dead?

So the rules are gone. Some big ISPs are at least still paying lip service to the idea of net neutrality, but they are under no legal compulsion to continue to support this stance. We haven’t seen anything wild in terms of tiered pricing plans yet, but it’s very difficult to tell how faithfully any ISP is keeping its promises about prioritization and throttling, especially if they’re going about it in a way meant to minimize public suspicion. And all of this could change at any time unless net neutrality protections are restored. So what do we do now?

Well, the FCC is a part of the executive branch of the US government. If you’re rusty on your Schoolhouse Rock, they’re in charge of enforcing the law. But they don’t make laws—that’s the legislative branch, aka Congress. And while they have some leeway to interpret laws, their interpretations are always open to being overturned by the judicial branch—the courts, including the Supreme Court. So while we suffered a major loss in the fight for net neutrality, there are still battles ongoing in the legislature and the courts that could overturn the decision.

A vote in the Senate of 48 yea to 47 nea with five abstaining would pass a simple majority.

At the state level, the governors of Oregon, Vermont, and Washington have signed open internet laws, and California is one signature away from enacting legislation that would require ISPs operating there to comply with net neutrality regulations even more strict than the ones that were repealed at the federal level. Pai claims this would be illegal, as it conflicts with the federal order, but a dispute between California and the federal government would have to go to the courts to be resolved. This could turn out in Pai’s favor, nullifying the California law. But it could also lead to a ruling that the federal order itself was illegal, as many net neutrality advocates are trying to prove, causing the FCC’s intervention to backfire. Slate’s April Glaser pointed out last year that Pai’s rules “aren’t on solid legal footing”, and many, including New York Attorney General Barbara Underwood, have already filed a suit— supported by 22 other US attorneys general representing over 160 million Americans—to reverse the FCC order.

On the legislative side, overturning the FCC order would only require a simple majority in Congress. That means more votes in favor than against in both the Senate and the House of Representatives, disregarding any abstentions. This is easier to achieve than an absolute majority—half the total number of seats, plus one—normally required to pass legislation. A vote in the Senate of 48 yea to 47 nea with five abstaining would pass a simple majority, even though an absolute majority of 51 was not achieved. This is significant in that swing votes only need to be convinced not to vote against net neutrality, rather than to actively vote for it.

This was already achieved in May, but the resolution hasn't made it through the House.

Governor Jay Inslee ‏signs a Washington State bill to "protect an open internet in Washington." Credit: Gov. Jay Inslee / Legislative Support Service

What you can do

This is where anyone who can vote in the US can help out. All 435 US Representatives and 35 out of 100 Senators are up for re-election in this fall’s midterms. The Verge collected this list of every Congressperson who voted against net neutrality protections in 2017, as well as how much money they received in campaign donations from big telecom lobbies. If you live in a state or district represented by one of them, you can send a message leading up to the election by contacting them directly and, if they hold firm to their stance in a contested seat, vote them out in November. Attending town halls and other public meetings to ask questions about net neutrality throughout the campaign season is also a helpful way of determining and publicizing a candidate’s stance on the issue. You can find out if you’re registered to vote (and register if you’re not) very easily on vote.org.

All 435 US Representatives and 35 out of 100 Senators are up for re-election in this fall’s midterms.

Contacting state legislators and voting in local- and state-level elections can also be a big help. California is about to pass its own net neutrality rules, which will force a court case on the issue if the FCC wants to interfere. We can look to examples like use of cannabis, which remains federally illegal as a Schedule I substance but has been legalized or decriminalized in a majority of states to the point that the federal government has stepped back (though not consistently) and allowed those states to enforce their own rules. The same could happen with net neutrality at the state level, regardless of the federal order, especially if most state legislatures end up supporting it.

Net neutrality protections are beneficial to just about everyone who isn’t looking to make money as a shareholder or corporate officer in a big ISP. It’s hard to tell if or when ISPs will act on their new freedoms, but they have a strong financial incentive to do so and most face little meaningful competition that would rein them in. For more on net neutrality and why it matters to us, see our article from last year about what net neutrality means for PC gaming.