With a 3-2 vote along partisan lines, the FCC has restored both net neutrality–and its Title II authority over Internet access providers. It’s just the latest chapter in a multi-decade quest to try and prevent national telecom monopolies from abusing their market power to undermine competitors while nickel and diming American consumers.
“Consumers have made clear to us they do not want their broadband provider cutting sweetheart deals, with fast lanes for some services and slow lanes for others,” FCC boss Jessica Rosenwocel said in a statement.
“They do not want their providers engaging in blocking, throttling, and paid prioritization. And if they have problems they expect the Nation’s expert authority on communications to be able to respond,” Rosenwocel added.
Smaller ISPs and municipalities worry that the new rules saddle them with burdensome regulations as a punishment for the sins of much larger companies. But the FCC, state leaders, and consumer groups insist the rules should be a net benefit all the same.
The final rules require that ISPs be transparent about any restrictions on consumer broadband lines. They also prohibit ISPs from extorting content and service companies looking to maintain high-quality performance on telecom networks, and prohibit telecoms from undermining online competition by creating pay-to-play “fast lanes.”
The rules first passed in 2015 saw widespread bipartisan support among American Internet access subscribers, who’ve been broadly dissatisfied with U.S. broadband service quality. Those rules moved residential Internet access services from a bucket of regulations called Title I – which the FCC has little power over – to Title II. Title II, which includes telephone service, allows the FCC to regulate on issues of service quality and much more – so much more that the FCC included in the rules that it will not attempt to use price controls or impose unbundling requirements on Internet access providers.
When the Trump FCC repealed the rules in 2017, telecom giants like Comcast and AT&T were caught using fake and dead people to create the illusion of public support during the federal comment period.
The Trump FCC was also caught making up a DDOS attack to explain away public outrage as angry, real consumers flooded the agency website.
“They jammed our in-boxes, overwhelmed our online comment system, and clogged our phone lines,” Roselworcel said. “They clamored to get net neutrality back. In the intervening years, they have not stopped. Thousands of consumers write us month after month seeking to have this agency help them navigate issues with their broadband service.”
Debate Over Net Neutrality Is Really A Debate Over Monopoly Power
Lost in the endless debate over throttling, fast lanes, and network management is the fact that net neutrality, at its core, is a policy conversation about the downsides of consolidated monopoly power. Net neutrality rules might not be necessary in a healthy market where consumers are able to organically punish bad ISP behavior by voting with their wallet.
Absent organic market competition, and seeing little in the way of consistent federal consumer protection, regional monopolies see few consequences for high prices, poor customer service, spotty coverage, or privacy and net neutrality violations.
These industry giants have spent untold millions ($320,000 every day by one estimate) to ensure they also rarely see meaningful state and federal accountability for the abuse of federal subsidy programs or outright fraud.
While the rules are generally seen as a useful way to prevent giant telecom monopolies from abusing their market power to harm consumers and competitors, smaller providers continue to express concern they’re facing new regulatory burdens at no fault of their own.
Derek Barr, Assistant General Manager at rural West Virginia Cooperative Hardy Telecommunications told ILSR:
“We’ve always practiced net neutrality and we always would. We don’t have anything to gain from doing otherwise, and couldn’t even do so if we wanted.”
Studies have repeatedly shown that smaller cooperatives, city-owned utilities, and municipal broadband operations are less likely to engage in such behavior because as community-owned networks staffed with locals, they’re inherently more directly accountable to the public.
“I hear it at Walmart. I hear it at the local basketball or football game. Um, they'll write to my personal account on Facebook,” Barr said. “They definitely know how to find us.”
Giant ISPs, in contrast, have ample leeway before seeing accountability for bad behavior, such as in 2018 when Verizon Wireless throttled California wildfire fighters to upsell them to more costly wireless tiers; or in 2017 when Comcast and Verizon throttled Netflix network performance in a bid to force them to pay higher interconnection fees.
“Do you think we have any market power whatsoever to control net neutrality and get more out of Netflix to prioritize their traffic? They would laugh in our face,” Barr said.
Much like the original 2015 rules, the 2024 versions attempt to address this with several exemptions for smaller providers (defined as an ISP with less than 100,000 subscribers), particularly when it comes to the agency’s transparency requirements.
“I think in a lot of these rules, there should be exemptions for small providers,” Barr said. “I know a large provider would scream that that's absolutely an unfair marketplace, but then again, you guys aren't coming in here to serve, are you?”
The Rules Are About More Than Net Neutrality
When telecom giants convinced the Trump administration to repeal net neutrality, they weren’t just taking aim at the rules. The repeal also rolled back the FCC’s Title II authority over Internet service providers in general, something the current FCC says harmed their ability to police consumer fraud, public safety, privacy violations, network security issues, and even national security.
“Thousands of consumers write us month after month seeking to have this agency help them navigate issues with their broadband service,” Rosenworcel said. “Yet, as a result of the last FCC throwing these policies out and backing away from broadband, we can only take action when they have issues with their long distance voice service. There is nothing modern about that.”
Consumer advocates say the restoration of the FCC’s Title II authority should also bolster smaller communities looking for federal connectivity aid.
“Now that broadband is once again classified as a Title II telecommunications service, providers who only offer broadband, or who would otherwise want to completely sunset their voice services, can now meet the qualifications to be an ‘Eligible Telecommunications Provider’ and receive support from the Lifeline program,” S. Derek Turner, Senior Advisor, Economic and Policy Analysis at consumer group Free Press, told ILSR. “Going forward, this will also likely impact the USF High Cost Fund, in a way where broadband-only carriers may become eligible for those various subsidies.”
The 2017 Trump FCC was particularly unique in that it didn’t just attempt to completely defang federal regulators. It went one step further, broadly declaring that states were barred almost entirely from stepping in to protect broadband subscribers.
The courts have sided with the states repeatedly since, ruling that the FCC can’t abdicate its responsibility over broadband consumer protection, then prevent states from stepping in to prevent harms. An appeals court did so again last week, when it ruled that the 2017 net neutrality repeal didn’t pre-empt a NY State effort to mandate the delivery of $15 broadband to low-income state residents.
“The case law is now abundantly clear that if the FCC eliminates its authority over broadband by miscategorizing it as a Title I information service, then the states can step in,” Stanford Law Professor Barbara Van Schewick said of the ruling. “They can create their own net neutrality protections, like California and others do, require affordable broadband options like New York, and institute broadband privacy protections like Maine.”
With the death of the FCC’s Affordable Connectivity Program (ACP), and several looming Supreme Court rulings that could all but gut what’s left of federal corporate regulatory oversight, state broadband regulatory authority could soon prove more important than ever.
While smaller providers might applaud the dismantling of what they view as overburdensome federal regulation, a free-for-all environment in which there’s little to nothing standing between them and the anti-competitive whims of giant monopolies with unlimited budgets would pose no limit of entirely new problems.
Time will tell whether the FCC enforces the rules with any consistency, or remains true to their promise to ease the burdens on smaller providers. But the endless debate over net neutrality often misdirects attention from the real problem with U.S. broadband: unchecked, consolidated monopoly power long protected by lobbying and widespread corruption.
Header image of Net Neutrality protest courtesy of Wikimedia Commons, CC BY 2.0 DEED Attribution 2.0 Generic
Inline image of front door of FCC building courtesy of Rob Pegoraro, CC BY-NC-SA 2.0 DEED Attribution-NonCommercial-ShareAlike 2.0 Generic
Inline image of monopoly book and money stack on desk courtesy of Financial 8, CC BY-SA 3.0 DEED Attribution-ShareAlike 3.0 Unported
Inline image of Geronimo Interagency Hotshot Crew fighting California wildfires courtesy of USDA photographer Lance Cheung, Public Domain Mark 1.0 Universal
Inline image of consumer protection court paperwork courtesy of Pix4Free.org, CC BY-SA 3.0 DEED Attribution-ShareAlike 3.0 Unported
