Federal Court Upholds FCC Decision to Roll Back Obama-Era Net Neutrality Rules

Deregulation didn't end the internet as we know it.

Four years ago, in the waning days of the Obama administration, the Federal Communications Commission finally achieved one the president's long-held political goals: a formal reclassification of the internet's regulatory status, from a lightly regulated Title I "information service" to a more heavily regulated Title "telecommunications service"—essentially, a public utility.

It was a profound shift in internet regulation, which from the beginning had survived, and arguably thrived, under a regulatory approach that was largely hands-off. Now the federal government would effectively be the arbiter of which network practices would be acceptable and which would be forbidden. 

The move came as a result of the Obama administration's push for "net neutrality" rules that would have governed how internet service providers managed their networks. Net neutrality rules had been repeatedly struck down in the courts, which said the agency lacked statutory authority to make the change. Forcing the internet into a public utility model would give net neutrality rules a stronger legal foundation. 

It would also place a substantial burden on internet service providers (ISPs), which warned of decreased investment under the new regulatory scheme, and for little obvious consumer benefit. Although net neutrality supporters frequently invoked dire hypotheticals about the end of a free and open internet, they produced few significant examples of net neutrality violations in the real world. Net neutrality was a prophylactic, not a solution to an existing problem. 

Two years later, after President Donald Trump's election, newly installed FCC Commissioner Ajit Pai began a process that led to the rollback of the Obama administration's regulatory overhaul. Critics issued increasingly apocalyptic warnings about ISPs charging more for certain services and blocking websites for expressing certain political opinions—conjuring up a "dystopian" future internet in which "the basics are barely tolerable, and everything else costs extra." The Trump FCC's move was a "threat to free speech." 

"As a result of today's misguided action, our broadband providers will get extraordinary new powers. They will have the power to block websites, the power to throttle services, and the power to censor online content," Democratic FCC Commissioner Jessica Rosenworcel warned at the time. 

But the main result of Pai's move was to take the internet back to a regulatory model similar to the one it had operated under from its inception through 2014. Internet service would be lightly regulated, as it had been since the 1990s. ISPs would be required to be transparent about network management processes, and the Federal Trade Commission would enforce violations. 

More than 20 state attorneys general, along with several internet companies that favored net neutrality, took the FCC to court, arguing that the agency had acted in an "arbitrary and capricious" manner that would allow ISPs to "abuse their gatekeeper roles in ways that harm consumers and threaten public safety." 

Today, by a 2-1 vote, the United States Court of Appeals for the District of Columbia Circuit sided largely with the FCC, upholding the primary regulatory rollback as a valid exercise of its authority. In the nearly 200 page opinion, which is heavy on technical detail, the court wrote that while the challengers raised "numerous objections" aiming to show that the FCC's reclassification is "unreasonable," the judges found them "unconvincing."

The court raised several smaller issues related to public safety and "the regulation of pole attachments," and allowed for the possibility that states might implement their own net neutrality regulations. California has already enacted such a law, but had suspended enforcement pending the outcome of this case. And the court cautioned that its judgment was not an endorsement of the policy decision on the merits, but a judgment about its legality. 

The evidence for the Trump FCC's decision to roll back the Obama administration's regulatory expansion, however, is in the state of the internet itself: Broadband speeds are up, and the United States leads the world in overall data traffic. The internet, while imperfect, has not become the sluggish, apocalyptic, dysfunctional mess that net neutrality backers warned. 

And while it is true that large tech companies have, in some cases, suppressed the expression of certain political ideas on their online platforms, that suppression—which is not, strictly speaking, censorship in the First Amendment sense, and is legal—has tended to come from social media companies who supported some form of net neutrality.

Even in the absence of net neutrality rules, the internet, in other words, remains as it has always been: fascinating, frustrating, infuriating, invigorating—or, at the very least, just fine.