Last year a debate over net neutrality reignited as FCC chairman Ajit Pai announced his intention to repeal those regulations, which took effect with the “Open Internet Order.” Democrats filed a petition this week to force a net neutrality vote in a last ditch effort to save the regulations, which officially will be killed off on June 11th.
Thanks to the Congressional Review Act, Congress can override administrative agencies like the FCC with a simple majority vote. While Democrats know it’s unlikely to succeed, this is just theatrics so that Democrats can target individual Republicans for their “records opposing net neutrality” during their midterm campaigns. Efforts to preserve net neutrality are being presented by proponents as “saving the internet” and guaranteeing a “free and open internet,” but are they really?
Let’s just review some of the predictions of what will supposedly happen when the final nail is driven into the coffin of net neutrality. Among the most common pro-net neutrality talking points is that the internet pricing would became an “a la carte” system, rather than one where someone pays to access the internet, period. Below is one image showing how net-neutrality proponents believe that internet service providers (ISP) would structure pricing in absence of net neutrality:
In response to arguments like this, one simply need point out that the internet was not priced like this before net neutrality regulations took effect – in mid 2015. It was perfectly legal for ISPs to price their services like this from day one of the internet to mid-2015, and yet none have ever even proposed implementing such a pricing model. Thus when it comes to pricing, all net neutrality did was protect us from a hypothetical.
What of other claims, like one that ISP’s will throttle the internet speed of some customers in absence of regulations preventing them? In one article cautioning against a net neutrality repeal, the author writes that “If a media conglomerate decided to stream a major sports event to all its customers, it may prioritize that bandwidth over other streaming content.” Regarding throttled internet speeds, the example you’ll always see cited as Exhibit A is Netflix. Back in 2014, Netflix and Comcast were in talks, with Comcast demanding payment in exchange for a promise to deliver movies smoothly to Netflix customers. Comcast throttled Netflix’s speed until Netflix caved to their demands, as you can see in the chart below. Netflix caved in February.
It must be pointed out here that net neutrality regulations still allow ISPs to block content. Hence why we learned in 2017 (with net neutrality in effect) that Verizon had been throttling traffic on Netflix and YouTube. Nearly all mainstream publications refer to Verizon’s actions as an “apparent violation” of net neutrality – because net neutrality’s rules aren’t what they think they are. As Reason Magazine’s Andrea O’Sullivan noted:
The Open Internet Order (“net neutrality”) did not require all internet actors—ranging from ISPs to content platforms to domain name registrars and everything else—to be content-blind and treat all traffic the same. Rather, it erected an awkward permission-and-control regime within the FCC that only affected a small portion of internet technology companies.
Not even ISPs would be truly content-neutral under the OIO. Because of First Amendment concerns, the FCC could not legally prohibit ISPs from engaging in editorial curation. The U.S. Court of Appeals made this very clear in its 2016 decision upholding the OIO. ISPs that explicitly offer “‘edited’ services” to its customers would be virtually free from OIO obligations. It’s a huge loophole, and it massively undercuts any OIO proponent’s claims that they are supporting “net neutrality.”
The internet was already regulated by Title I. So-called net neutrality regulations reclassified the internet as being regulated under Title II of the 1934 Communications Act, which was created to regulate landline telephones. For whatever problems do need to be regulated away, the regulations dying in June don’t fix them.