Net neutrality was back, until it wasn’t

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

Federal net neutrality rules have been on and off for the past fifteen years. The Federal Communications Commission (FCC) adopted the Open Internet Order in 2010 under President Barack Obama, which prohibits ISPs from blocking or restricting legitimate Internet traffic, the basic rule of net neutrality. Then, at the request of those ISPs, a court blocked its rules. An updated framework was adopted by the FCC in 2015, but was overturned in 2017 under President Donald Trump’s first administration. It seemed poised for a comeback in 2024, but the victory lasted just months before a court overturned it — starting a difficult year for open internet and broadband regulation as a whole.

Rather than fight the court’s ruling against net neutrality, the Trump administration’s FCC preemptively struck down the rules — without the chance for public comment. The move was part of FCC Chairman Brendan Carr’s “Delete, Delete, Delete” initiative, which aims to wipe out “unnecessary” regulations.

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

However, Matt Wood, vice president of policy and general counsel at the nonprofit Free presssays in an interview with The edge that ISPs often experience little financial impact from these rules, and may even already comply with them. “When a lot of cable and phone companies talk to their business people and then go back to investors and financial analysts, they say, ‘Yes, that’s how we do it anyway.’ So I think that many of their complaints about the so-called ‘burdens’ of these rules are really only ideological in nature.”

Why bother with regulations when ISPs are already (in theory) compliant? It comes down to accountability and transparency. Regulations ensure that voters, not ISPs, set the rules online. Otherwise, nothing will stop them from changing their activities later.

The FCC’s anti-regulatory agenda for telecom extends even beyond net neutrality. Chao Jun Liu, senior legislative fellow at the nonprofit Electronic Frontier Foundation (EFF), notes the FCC’s recent move to roll back Biden-era cybersecurity rules. Carr’s FCC also rolled back requirements for them to provide “food labels” for their broadband prices, claiming it was “burdensome” for ISPs to display those details.

“There’s a lot of this theme: ISPs just want to do what they want to do, without boundaries, and no one tells them how to do it, when to do it, [or] on what timeline,” says Liu The edge.

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

State lawmakers passed net neutrality in the late 2010s, following the repeal of the FCC’s 2015 order. California’s 2018 net neutrality law, considered the nation’s gold standard, even includes some policies left out of the 2015 federal standards, such as the ban on zero-rating, which allows ISPs to exempt certain apps or services from customer data limits. Several other states have adopted similar rules, including Washington, Oregon, Colorado, New Jersey and Vermont.

The most recent repeal has led to a new wave of these efforts. Maine passed a bipartisan net neutrality law in June, without Governor Janet Mills’ signature. There was also a bill to extend net neutrality rules for “public utilities” to ISPs introduced in Pennsylvania in March. Similar bills were introduced in the New York State Senate And state assembly this year too.

ISPs have thus far largely retreated from openly offering paid priorities or conventional “fast lanes,” something net neutrality advocates attribute at least in part to state-level regulations. “I think net neutrality laws at the state level, and the threat of new ones, have kept some of the worst outcomes in check,” John Bergmayer, legal director at the nonprofit Public Knowledge, said in a statement to The edge.

However, this reluctance could change. T-Mobile, Verizon, and AT&T are all offering network slicing on their 5G networks, allowing certain customers (especially businesses) to pay for virtual networks with higher speeds — which, while not inherently violating net neutrality standards, could lay the groundwork for segmented networks.

State-level laws are also the next target on the deregulation chopping block. In October, the National Telecommunications and Information Administration (NTIA) began an effort to do so pressure states to exempt ISPs of their net neutrality laws to qualify for funding from the Biden-era Broadband Equity, Access, and Deployment (BEAD) Program. In a speech at the Hudson InstituteNTIA Administrator Arielle Roth called state-level net neutrality laws “a form of rate regulation,” the practice of determining what companies can charge for their services.

Accusations of rate regulation have become commonplace, but Matt Wood of Free Press claims they are exaggerated. While BEAD prohibits rate regulation, state-level net neutrality laws do not inherently fall under that label. Opponents of net neutrality “characterize any consumer protection tool as rate regulation, when I don’t think it has any legitimate impact on the rates that companies can charge for the broadband services they provide,” Wood says.

And again, this is part of a larger deregulation agenda. EFF’s Chao Jun Liu pointed out similarities with efforts to leverage BEAD funds against AI regulation, including through a recently signed executive order. These efforts to connect AI regulation and broadband financing are “a new development,” Liu says. “This is really a Brendan Carr special, Trump administration.”

At a time when broadband expansion remains critical, the Trump administration is threatening much-needed infrastructure funding to attack technology regulation. Unfortunately, despite being a bipartisan program, BEAD is where this debate is currently playing out. As Wood says, “Why are we taking broadband deployment, which is quite popular and quite bipartisan, to a new front in these culture wars?”

Legal experts have pointed out that Roth and the NTIA do not necessarily have the authority to override state-level net neutrality laws for the sake of BEAD funding. However, it seems likely that the debates over these funds will further delay BEAD’s rollout, and with it the program’s mission to expand broadband development, especially to underserved communities.

So while the tug-of-war over net neutrality rules continues, so too do the problems with broadband access in the US. Internet affordability is an ongoing problem across the country, but especially in rural areas where people often only have one or two providers to choose from. BEAD was intended to address that problem, but could now be bogged down in a debate over AI regulations.

Even in areas with robust internet access, high prices are still a problem, especially since the Affordable Connectivity Program was discontinued almost two years ago. Additionally, the US is experiencing a wave of bills that could roll out widespread age verification rules online, sparking debate over privacy, censorship and freedom of expression.

All of this – and not just the fate of net neutrality – will leave the Internet in a dangerous state by 2026.