Just over five years ago, on February 26, 2015, the Federal Communications Commission took a historic vote to put rules enforcing net neutrality—the guarantee that even commercial internet providers must treat all data traffic equally—into place at the federal level. But it took just three years and one election for the now-Republican dominated FCC to repeal the Obama-era rules.
Now, with a flurry of sometimes bizarre developments since the net neutrality anniversary last week, chaos appears to reign in the battle over the open internet. In perhaps the strangest development, the Donald Trump administration issued a report claiming that, somehow, killing off net neutrality rules has been an economic bonanza, boosting “real incomes” by more that $50 billion per year, according to an Ars Technica summary.
The White House report claims that by lifting “vertical pricing restrictions” and “government oversight on communication services,” the net neutrality repeal has somehow resulted in lower prices for internet consumers, a conclusion scoffed at by experts quoted in the Ars Technica report.
"One of the fun things about how folks use pseudo-economics in public policy is that you can use it to justify all kinds of price gouging and other consumer harms,” Harold Feld, a broadband industry expert and senior vice president of the of consumer-advocacy group Public Knowledge, told Ars Technica. "Somehow, despite the fact that everyone paying for broadband can tell you their bill keeps going up, we are supposed to believe that when you look at the bill the right way you are actually paying less."
Thomas Regrets Opinion Allowing Repeal
At the same time, even one top conservative, Supreme Court Justice Clarence Thomas, said last week that he is now having second thoughts about the decision that allowed the repeal of net neutrality—a decision he wrote 15 years ago, according to a TechDirt report.
In a decision in the case National Cable & Telecommunications Association v. Brand X Internet Services—or Brand X for short—the majority decision allowed the FCC to classify online services as either “information” or “telecommunications,” switching back and forth as it saw fit. The Obama-era net neutrality rules took advantage of Brand X, switching the classification to “telecommunications.”
That classification allowed heavier government regulation—permitting the FCC to impose net neutrality rules. But in 2018, under Trump-appointed Chair Ajit Pai, the FCC switched back, causing the rules to be ditched.
In an opinion issued Monday, Thomas wrote that his earlier view was wrong—his own Brand X decision gave federal agencies too much power to interpret federal laws, and “appears to be inconsistent with the Constitution.”
But Thomas’s opinion came in a dissent, in a case involving the Internal Revenue Service, and as a result, has no effect on net neutrality decisions in the future. But it indicates that given a chance to overturn his previous ruling—the ruling that allowed net neutrality rules to be both enacted and, three years later, repealed—he would vote to reverse.
FCC Suppressing Public Net Neutrality Comments
So far, the Supreme Court has not heard any cases challenging the FCC’s net neutrality repeal. But SCOTUS appears likely to at least be presented with a lawsuit by Mozilla, in which a Washington, D.C., appellate court upheld the repeal—but ordered the FCC to answer several questions about the effect of its so-called “Restoring Internet Freedom Order.”
The FCC was then forced to open up the public comment section of its website, and the net neutrality area of the site quickly became the busiest with 3,000 new comments—most of them simply demanding that the FCC restore the net neutrality rules.
But according to a report by The Progressive magazine, Pai set the shortest possible deadline for the public feedback, closing down the comment section on March 30, “once again demonstrating that he’s not interested in public input,” wrote Paul Goodman, of the social justice nonprofit Greenlining Institute.
“Chairman Pai is thumbing his nose at the principle and thinks he can disregard public input,” Goodman said.
Wired magazine summarizes net neutrality as the basic principle “that internet service providers like Comcast and Verizon should treat all content flowing through their cables and cell towers equally.”
In other words, Wired wrote, “companies shouldn't be able to block you from accessing a service like Skype, or slow down Netflix or Hulu, in order to encourage you to keep your cable package or buy a different video-streaming service.”
Photo by Camilo Sanchez / Wikimedia Commons Public Domain
