Net neutrality is officially dead today, but the fight to revive it lives on

Net neutrality’s protracted, multi-phase death scene has finally come to an end with a whimper as the FCC rules proposed in May, voted on in December, and entered in the Federal Register in February finally come into effect today. But as before, don’t expect some big fanfare by broadband providers and a sudden ratcheting up of prices. Things are going to stay quietly tense for a while.

Should you be worried? No. But you should stay angry.

“Restoring Internet Freedom” may have taken effect, but the truth is that the 2015 net neutrality rules have been out of effect since the FCC was shuffled under the new administration. Under Chairman Ajit Pai’s FCC, those rules were unlikely to be enforced from the day he took over; he was, in fact, promising industry leaders that they’d be rolled back as soon as possible soon after assuming his new office.

But ISPs, battered but wise from more than a decade of legal battling, knew there was more to it than a friendly face in the FCC. The rules would face serious legal challenges, as the previous ones did for years after their adoption. It would be premature to enact policies in the new freedom of the post-Title-II era, though they may allow themselves to hope (and prepare).

As they expected, opposition is organized and actually has a non-trivial chance of success. The popularity, technical accuracy, and ironclad legal reputation of the previous rules are nice, but ultimately challenges must be based on shortcomings in the new rules, not strengths on the old ones.

Fortunately, there’s no end of shortcomings.

As I’ve detailed before, the main legal challenges fall under three categories:

  • Congressional Review Act: The Senate is one vote away from forcing a vote on the repeal of the rules — unlikely to succeed, but it would force Senators to publicly take an position in an election year while voters still have the issue fresh in their minds.
  • Administrative Procedure Act: Lawsuits may allege that last year’s rulemaking process was “arbitrary and capricious,” either because of the various inconsistencies in the FCC’s own process or because of the technical issues in the order itself. Lawsuits have already been filed.
  • State laws: Several states have already begun (or are nearing completion) legislation establishing their own net neutrality policies. The argument is that if the FCC gives up its powerful Title II authority, under which the previous rules were enforced, then it has no jurisdiction over state policy in this area. Lawsuits will be filed.

You can read more about these here and here.

Both sides are pushing for legislation to settle the issue once and for all, though of course each side wants rather different legislation. But that’s a longer game, and since it’s an election year it will almost certainly have to wait until 2019 or even 2020. Many politicians are calling for net neutrality to be presented as a major voter issue.

The fact that little will change in the short time after the new rules take effect will be crowed about by their proponents as evidence that there was nothing nefarious about them. But the simple truth is that everyone with anything to gain by taking advantage of the new rules is too smart to do so until they know they’re on a solid legal footing. That won’t happen for quite a while.

Meanwhile, it must be said that while politicians struggle over legal definitions and justifications for different levels and types of net neutrality, the internet and web are evolving beyond that. The increasing ubiquity of encryption moots the arguments and methods of internet providers for establishing “fast lanes” and other interference.

That’s not to say some shady tactics won’t emerge here and there. There are lots and lots of internet providers in the country and one might decide that the time is right to institute their “innovative” new policy of zero-rating partners’ streaming video channels while throttling competitors.

That’s why consumers must be vigilant. Do you see something new and weird in your new terms of service? Do you notice a suspicious bandwidth issue on certain sites or services? Tell us, or tell one of the advocacy organizations that has been fighting on your behalf all these years. We only had net neutrality for a short, sweet time and there’s no reason we should let it slip away without a fight.

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