Hiltzik: The revival of network neutrality

Business Columnist

April 26, 2024 3 AM PT

In the midst of its battle to extinguish the Mendocino Complex wildfire in 2018, the Santa Clara County Fire Department discovered that its internet connection provider, Verizon, had throttled their data flow virtually down to zero, cutting off communications for firefighters in the field. One firefighter died in the blaze and four were injured.

Verizon refused to restore service until the fire department signed up for a new account that more than doubled its bill.

That episode has long been Exhibit A in favor of restoring the Federal Communications Commission’s authority to regulate broadband internet service, which the FCC abdicated in 2017, during the Trump administration.

This is an industry that requires a lot of scrutiny.

— Craig Aaron, Free Press, on the internet service industry

Now that era is over. On Thursday, the FCC — now operating with a Democratic majority — reclaimed its regulatory oversight of broadband via an order that passed on party lines, 3-2.

The commission’s action could scarcely be more timely.

“Four years ago,” FCC Chair Jessica Rosenworcel observed Thursday as the commission prepared to vote, “the pandemic changed life as we know it. ... Much of work, school and healthcare migrated to the internet. ... It became clear that no matter who you are or where you live, you need broadband to have a fair shot at digital age success. It went from ‘nice to have’ to ‘need to have.’ ”

Yet the commission in 2017 had thrown away its own ability to supervise this essential service. By categorizing broadband services as “information services,” it relinquished its right to address consumer complaints about crummy service, or even collect data on outages. It couldn’t prevent big internet service providers such as Comcast from favoring their own content or websites over competitors by degrading the rivals’ signals when they reached their subscribers’ homes.

“We fixed that today,” Rosenworcel said.

The issue the FCC addressed Thursday is most often viewed in the context of “network neutrality.” This core principle of the open internet means simply that internet service providers can’t discriminate among content providers trying to reach your home or business online — they can’t block websites or services, or degrade their signal, slow their traffic or, conversely, provide a better traffic lane for some rather than others.

The principle is important because their control of the information highways and byways gives ISPs tremendous power, especially if they control the last mile of access to end users, as do cable operators such as Comcast and telecommunications firms such as Verizon. If they use that power to favor their own content or content providers that pay them for a fast lane, it’s consumers who suffer.

Net neutrality has been a partisan football for more than two decades, or ever since high-speed broadband connections began to supplant dial-up modems.

In legal terms, the battle has been over the classification of broadband under the Communications Act of 1934 — as Title I “information services” or Title II “telecommunications.” The FCC has no jurisdiction over Title I services, but great authority over those classified by Title II as common carriers.

The key inflection point came in 2002, when a GOP-majority FCC under George W. Bush classified cable internet services as Title I. In effect, the commission stripped itself of its authority to regulate the nascent industry. (Then-FCC Chair Michael Powell subsequently became the chief Washington lobbyist for the cable industry, big surprise.)

Not until 2015 was the error rectified, at the urging of President Obama. Broadband was reclassified under Title II; then-FCC Chair Tom Wheeler was explicit about using the restored authority to enforce network neutrality.

But that regulatory regime lasted only until 2017, when a reconstituted FCC, chaired by a former Verizon executive Ajit Pai, reclassified broadband again as Title I in deference to President Trump’s deregulatory campaign. The big ISPs would have geared up to take advantage of the new regime, had not California and other states stepped into the void by enacting their own net neutrality laws.

A federal appeals court upheld California’s law, the most far-reaching of the state statutes, in 2022. And although the FCC’s action could theoretically preempt the state law, “what the FCC is doing is perfectly in line with what California did,” says Craig Aaron, co-CEO of the consumer advocacy organization Free Press.

The key distinction, Aaron told me, is that the FCC’s initiative goes well beyond the issue of net neutrality — it establishes a single federal standard for broadband and reclaims its authority over the technology more generally, in ways that “safeguard national security, advance public safety, protect consumers and facilitate broadband deployment,” in the commission’s own words.

Although Verizon’s actions in the 2018 wildfire case did not violate the net neutrality principle, for instance, the FCC’s restored regulatory authority might have enabled it to set forth rules governing the provision of services when public safety is at stake that might have prevented Verizon from throttling the Santa Clara Fire Department’s connection in the first place.

Until Thursday, the state laws functioned as bulwarks against net neutrality abuses by ISPs. “California helped discourage companies from trying things,” Aaron says. Indeed, provisions of the California law are explicit enough that state regulators haven’t had to bring a single enforcement case. “It’s been mostly prophylactic,” he says — “telling the industry what it can and can’t do. But it’s important to have set down the rules of the road.”

None of this means that the partisan battle over broadband regulation is over. Both Republican FCC commissioners voted against the initiative Thursday. A recrudescence of Trumpism after the November election could bring a deregulation-minded GOP majority back into power at the FCC.

Indeed, in a lengthy dissenting statement, Brendan Carr, one of the commission’s Republican members, repeated all the conventional conservative arguments presented to justify the repeal of network neutrality in 2017. Carr painted the 2015 restoration of net neutrality as a liberal plot — “a matter of civic religion for activists on the left.”

He asserted that the FCC was then goaded into action by President Obama, who was outspoken on the need for reclassification and browbeat Wheeler into going along. Leftists, he said, “demand that the FCC go full-Title II whenever a Democrat is president.”

Carr also depicted network neutrality as a drag on profits and innovation in the broadband sector. “Broadband investment slowed down after the FCC imposed Title II in 2015,” he said, “and it picked up again after we restored Title 1 in 2017.”

Carr chose his time frame very carefully. Examine the longer period in which net neutrality has been debated at the FCC, and one finds that broadband investment crashed after a Republican-led FCC reclassified broadband as an information service in 2002, falling to $57 billion in 2003 from $111.5 billion in 2001.

Investment did decline between 2015, when net neutrality rules were reinstated, and 2017, when they were rescinded — by a minuscule 0.8%. It hasn’t been especially robust since then — as of 2002 it was still running at only about 92% of what it had been two decades earlier.

As the FCC observed in Thursday’s order, “regulation is but one of several factors that drive investment and innovation in the telecommunications and digital media markets.”

The commission cited consumer demand and the arrival of new technologies, among others. Strong, consistent regulation, moreover, opens the path for new competitors with new ideas and innovations — and can bring prices down for users in the process.

The truth is that network neutrality has been heavily favored by the public, in part because examples of ISPs abusing their power were not hard to find. In 2007, Comcast was caught degrading traffic from the file-sharing service BitTorrent, which held contracts to distribute licensed content from Hollywood studios and other sources in direct competition with Comcast’s pay-TV business.

In 2010, Santa Monica-based Tennis Channel complained to the FCC that Comcast kept it isolated on a little-watched sports tier while giving much better placement to the Golf Channel and Versus, two channels that compete with it for advertising, and which Comcast happened to own. The FCC sided with the Tennis Channel but was overruled by federal court.

Even barring a change at the White House, the need for vigilant enforcement will never go away; ISPs will always be looking for business models and manipulative practices that could challenge the FCC’s oversight capabilities, especially as cable and telecommunications companies consolidate into bigger and richer enterprises and combine content providers with their internet delivery services.

“This is an industry,” Aaron says, “that requires a lot of scrutiny.”