Klint Finley

In a recent article, respected technology industry analyst and blogger Ben Thompson argued that he supports net neutrality, but thinks the Federal Communications Commission is right to repeal rules that ban broadband providers like Comcast and Verizon from blocking, slowing down, or otherwise discriminating against legal content. Thompson argues that designating broadband providers as common carriers is a "heavy-handed” way to enforce net neutrality, echoing industry voices, and FCC chair Ajit Pai.

Internet service providers like Comcast and Verizon may soon be free to block content, slow video-streaming services from rivals, and offer “fast lanes” to preferred partners. For a glimpse of how the internet experience may change, look at what broadband providers are doing under the existing “net neutrality” rules. When AT&T customers access its DirecTV Now video-streaming service, the data doesn’t count against their plan’s data limits. Verizon, likewise, exempts its Go90 service from its customers’ data plans.

The Federal Communications Commission says it wants to hear from you about the future of net neutrality. But in opening its virtual doors to the public, it’s also opened them to spammers and trolls, some of whom might have even managed to knock the FCC’s site offline this past week.

On the one hand, these problems are mere hassles: The FCC’s site was only down for a few hours, and the flood of spam was easy to identify. On the other hand, they show just how hard it is to turn the web into a platform for democratic participation. Just look at any comments section on the internet.

Once Federal Communications Commission Chairman Ajit Pai’s notice of proposed rulemaking is approved, which is likely to happen at the FCC’s open meeting May 18, the public will have 60 days to file comments. Then people will have another 30 days to respond to the comments. The FCC’s staff will then have to turn all that feedback into a final order that commissioners will vote on. That process could take months, but based on Pai’s eagerness to re-reclassify broadband providers, you can expect action on that sooner than later.

Senior FCC officials told reporters during a press call that they won’t necessarily be swayed by public opinion. The call for comments is not, they said, a public opinion poll. Fair enough: Sometimes federal agencies have to make unpopular decisions. And if the FCC does vote to scrap net neutrality, it could be a very unpopular decision indeed. Despite growing polarization, a poll conducted by the University of Delaware found that the majority of both Democratic and Republican voters support some form of net neutrality protections.

Net neutrality advocates may have better luck in court than the FCC. Federal agencies must explain sudden policy reversals. If the courts decide that the FCC has acted in an arbitrary or capricious manner, the Title II reversal could be struck down. FCC staff, however, say they are confident that won’t happen. Pai has offered up data suggesting that companies are spending less money building and maintaining their broadband networks as a result of the Title II reclassification, which they believe should be enough to satisfy any legal challenge. Whether those controversial investment stats will be enough to sway the courts remains to be seen.

The Federal Communications Commission will vote on—and given its Republican majority, likely pass—the network neutrality proposal during an open meeting May 18. But that will only start what promises to be a lengthy battle for the future of net neutrality.

To truly torpedo the requirements, FCC Chairman Ajit Pai will have to make the case that he’s doing so for good reason. A 1946 law called the Administrative Procedures Act bans federal agencies making “capricious” decisions. The law is meant, in part, to keep regulations from yo-yoing back and forth every time a new party gained control of the White House. The FCC successfully argued in favor of Title II reclassification in federal court in 2016. That effort means Chairman Pai might have to make the case that things had changed enough since then to justify a complete reversal in policy. “That’s a pretty dramatic reversal,” says Marc Martin, chair of communications law at Perkins Coie. “Presuming there’s an appeal, a court may find that arbitrary.”

For more broadband choice, encourage your elected officials to make these three things happen:

1) Allow Smaller Providers to Lease Infrastructure. Regulators seem to believe that this is too radical an idea for the US, despite the fact that until 2005, DSL internet providers had to lease their wires.
2) Improve Access to Utility Poles: Mandating one touch make-ready is perhaps the most important thing that local, state, and federal governments could do to help smaller internet providers expand their footprints.
3) Streamline the Right-of-Way: Gathering all the necessary permits to cross state lines or build on public property can also take months or years, and require talking to countless agencies. Those permitting processes are in desperate need of streamlining.

Protecting Internet privacy should be a bipartisan issue, right? After all, Americans seem united in their dislike of the phone and cable behemoths that dominate internet service in the US. “At the end of the day, it’s your data,” says Rep Warren Davidson (R-OH), who voted against the repeal. “I don’t see how it could be anyone else’s.”For most Republicans, it seems, someone else’s private property rights took precedence: the cable and phone companies themselves.

Rep Davidson says he believes most of his colleagues subscribed to the free-market reasoning that because the ISPs built the networks, they could do with them what they pleased. But many people don’t have access to more than one home broadband provider–particularly in many of the rural districts that Republicans represent. And, if money can’t really explain the polarization on internet privacy, then what? Republicans traditionally recoil from government regulation—but the FCC’s regulations carried a special taint: the agency passed them under the Obama administration.

The House of Representatives is set to vote as early as March 28 on a resolution that would reverse Obama-era regulations preventing internet service providers from selling your web browsing history on the open market. All of which means you’ll need to take your online privacy into your own hands. Several technical workarounds—especially virtual private networks, or VPNs—will return some semblance of control to you, the internet user. But even these solutions are far from perfect. When it comes to privacy, tech can help. But it doesn’t take the place of having the law on your side.

Network neutrality is in danger, and former Federal Communications Commission Chairman Tom Wheeler isn’t pleased. Republicans’ go-to argument against the order is that it gave the FCC the authority to regulate the internet. Wheeler, who stepped down as FCC chair on Inauguration Day in 2017, calls the idea “ridiculous.” “This is no more the regulation of the internet than the First Amendment is the regulation of free speech,” Wheeler said.

Imagine a world where Comcast slows video streaming from Fox News’s website to a pixelated crawl while boosting Rachel Maddow—who happens to star on Comcast-owned MSNBC. What if Verizon, which owns the liberal Huffington Post, charged you more to visit right-wing Breitbart. Or maybe Google Fiber bans access to the alt-right social network Gab.

Today, it’s illegal to impose tiered pricing on any internet content, thanks to the Federal Communications Commission’s network neutrality rules. But if Republicans have their way, those rules will soon disappear, leaving companies like Comcast and Verizon free to block, throttle, or charge a toll to access your favorite websites and apps. Republicans may find trying to unwind net neutrality less popular than they think. Americans tend to see internet access as an extension of their First Amendment freedoms—they can say and see what they want online. If they have to start paying more for one kind of political speech over another, they likely won’t stay neutral at all.