Net neutrality was back, until it wasn’t

The battle for net neutrality never really seems to be won or lost.

Federal net neutrality rules have been on and off for the last 15 years. The Federal Communications Commission (FCC) passed the Open Internet Order in 2010 under President Barack Obama, prohibiting ISPs from blocking or reducing legitimate Internet traffic, the foundational rules of net neutrality. Then, at the request of those ISPs, a court blocked its rules. An updated framework was passed by the FCC in 2015, which was overturned in 2017 under the first administration of President Donald Trump. It looked set to make a comeback in 2024, but the victory lasted just a few months until the courts overturned it — beginning a difficult year for open internet and broadband regulation overall.

Rather than fight the court’s ruling against net neutrality, the Trump administration’s FCC has put out the rules without giving it a chance for public comment. The move was part of FCC Chairman Brendan Carr’s “Delete, Delete, Delete” initiative, which aims to eliminate “unnecessary” regulations.

ISPs have long criticized net neutrality rules as onerous. For example, USTelecom President and CEO Jonathan Spalter claimed that a 2024 vote to reinstate the FCC’s net neutrality rules was “counterproductive, unnecessary, and anti-consumer regulatory distraction.”

However, Matt Wood, vice president of policy and general counsel at the nonprofit Free Press, says in an interview The Verge ISPs often feel little financial impact from these regulations, and may even be complying with them already. “A lot of cable and phone companies, when they talk to their businessmen and then go to investors and financial analysts, they say, ‘Yeah, we’re doing it that way.’ So, I think a lot of their complaints about the perceived ‘burden’ from these rules are really just ideological in nature.”

Why bother with regulations if ISPs are already (theoretically) compliant? It depends on accountability and transparency. Regulations ensure that voters, not ISPs, are setting the rules of the road online – otherwise, there is nothing to stop them changing their operations.

The FCC’s anti-regulatory agenda for telecommunications reaches beyond net neutrality. Chao Jun Liu, senior legislative associate at the nonprofit Electronic Frontier Foundation (EFF), notes the FCC’s recent move to reverse Biden-era telecommunications cybersecurity rules. Carr’s FCC also withdrew requirements to provide “nutrition labels” for their broadband pricing, claiming it was a “burden” for ISPs to display those details.

“There’s a lot about this topic, ISPs just want to do what they want with no limits and no one tells them how to do it, when to do it, [or] On which timeline, Liu tells The Verge.

Federal regulations for ISPs seem to be dissolving like wet paper, but fortunately they are not the only line of defense for consumers.

State legislators adopted net neutrality in late 2010, after the FCC overturned the 2015 order. California’s 2018 net neutrality law, considered the country’s gold standard, also includes some policies that were left out of the 2015 federal standards, such as banning zero-rating, which allows ISPs to exempt certain apps or services from customers’ data caps. Several other states, including Washington, Oregon, Colorado, New Jersey and Vermont, have adopted similar rules.

The most recent repeal has inspired a new wave of these efforts. Maine passed a bipartisan net neutrality bill in June without Governor Janet Mills’ signature. A bill to extend “public utility” net neutrality rules to ISPs in Pennsylvania was also introduced in March. Similar bills were also introduced in the New York State Senate and State Assembly this year.

ISPs have so far been reluctant to openly offer payment preference or traditional “fast lanes”, which net neutrality proponents attribute at least partly to state-level regulations. “I think state-level net neutrality laws and the threat of new laws have prevented some of the worst outcomes,” John Bergmeier, legal director of the nonprofit Public Knowledge, said in a statement. The Verge.

However, this reluctance may change. T-Mobile, Verizon, and AT&T all offer network slicing on their 5G networks, allowing some customers (primarily businesses) to pay for a higher-speed virtual network – which, although it doesn’t inherently violate net neutrality standards, could lay the groundwork for fragmented networks.

State-level laws are also the next target in deregulation. In October, the National Telecommunications and Information Administration (NTIA) began pressuring states to exempt ISPs from their net neutrality laws in order to be eligible for funding from the Biden-era Broadband Equity, Access, and Deployment (BEAD) program. In a speech at the Hudson Institute, NTIA Administrator Ariel Roth called state-level net neutrality laws “a form of rate regulation,” the practice of setting how much companies can charge for their services.

Accusations of rate regulation have become common, but Matt Wood of the Free Press argues that these are excessive. While BEAD prohibits rate regulation, state-level net neutrality laws do not naturally fall under that label. Opponents of net neutrality “characterize any consumer protections as rate regulation, whereas I don’t think it actually has any legitimate effect on the rates that companies can charge for services offered in the broadband sector,” Wood says.

And, again, this is part of a larger regulatory agenda. EFF’s Chao Jun Liu drew parallels with efforts to leverage the BEAD fund against AI regulation, including the recently signed executive order. Liu says these efforts to link AI regulation and broadband funding are “a new development.” “This is very special to Brendan Carr, the Trump administration.”

At a time when broadband expansion remains critical, the Trump administration is threatening much-needed infrastructure funding by attacking tech regulation. Unfortunately, despite being a bipartisan program, BEAD is where this debate is currently taking place. As Wood says, “Why are we deploying broadband on another front in these culture wars, which is quite popular and quite bipartisan?”

Legal experts have pointed out that Roth and NTIA do not have the authority to enforce state-level net neutrality laws for BEAD funding. However, it appears that the debate over those funds will further delay BEAD’s implementation and, with it, the program’s mission to expand broadband development, particularly to underserved communities.

So, while the tug of war over net neutrality rules continues, so do the issues of broadband access in the US. Internet affordability is an ongoing challenge across the country, but especially in rural areas where people often have only one or two providers to choose from. BEAD was intended to help resolve that issue, but may now get caught up in the debate over AI regulations.

Even in areas with strong internet access, high prices are still a problem, especially since the affordable connectivity program was discontinued about two years ago. Additionally, there is a wave of bills underway in the US that could impose broader age verification rules online, sparking debate about privacy, censorship, and free speech.

All this – not just the fate of net neutrality – leaves the Internet in a perilous state by 2026.