The Net Neutrality Fight Will Soon Return, And The Bickering Will Be As Stupid As Ever

I know people are bored to death after years of infighting over net neutrality. But the FCC's attempts to impose something vaguely resembling oversight upon a bunch of shitty regional telecom monopolies that have bludgeoned U.S. broadband into uncompetitive rubble still matters, no matter how tired the press and public might be of the debate, or what telecom industry lobbyists might say.

LastSeptember the Biden FCC announced it was planning to restore net neutrality rules stripped away during the Trump administration amidst a lot ofbullshit and fraud. It, of course, didn't take long for the telecom industry, with GOP allies in lockstep, to whine to the FCC in writing about how imposing baseline oversight of giant telecom monopolies is unlawful":

This proposal is unlawful. Regulation of broadband is undoubtedly a major question of economic and political significance. Under the major questions doctrine, articulated in West Virginia v. EPA,an agency must wait for Congressional authorization before acting. In other words, if broadband needs to be regulated as a utility, that is a decision for Congress to make, not the FCC. Congress has not spoken on this issue."

The courts have already ruled several times that the FCC is currently well within its right to impose (and strip away) net neutrality rules within its authority embedded in the Communications Act, it just has to do a reasonably solid job justifying the decision with, you know, data.

But telecoms (just like every other industry looking to lobotomize what's left of federal corporate oversight), are really hopeful that the looming Supreme Court Chevron deference ruling curtails regulators from doing much of anything beyond what's deemed acceptable by corrupt judges with lifetime appointments and a Congress too corrupt to pass any new reforms (you saw what happened when people recommended Congress pass a net neutrality or broadband privacy law: jack shit).

As a refresher: net neutrality as I define it is an often murky attempt to prevent giant telecom monopolies from abusing their internet gatekeeping power to unfairly rip off consumers or disadvantage competitors, especially competitors that compete with an ISP's own services.

While there's often a lot of misinformed chatter about how net neutrality must not matter because the internet didn't explode upon repeal," that ignores that a major reason big ISPs didn't misbehave is because numerous big states rushed in to pass state-level laws they don't want to violate.

Even if you think net neutrality rules are stupid, cheering for their demise of FCC authority is counterproductive and stupid, given the lack of competition and regulatory oversight (the preferred outcome for AT&T and Comcast) is directly and documentably responsible for high broadband prices, spotty access, slow speeds, and some of the worst customer service ever conceived by man.

If there has to be new net neutrality rules, cable giants like Comcast and Charter are already hard at work lobbying to shape what those rules will look like, ensuring that pretty much anything they choose to do on their networks falls well outside of the FCC's oversight umbrella.

Big telecoms don't want the FCC to ban usage caps (a technically unnecessary price-gouging restriction designed exclusively to goose revenues). They don't want the FCC to ban reasonable network management" (the term reasonable" giving broad latitude to do pretty much whatever). They don't want the FCC to prohibit zero rating" (a form of paid preference that Mozilla and EU regulators have long criticized as telecoms playing field tilting, often under the guise of helping low income Americans).

Importantly, they also want to make sure the rules pre-empt any tougher state net neutrality rules like those passed in California and Washington state. And, of course, they want the FCC to forbear" telecoms from any of the parts of Title II classification that would allow the FCC to engage in things like rate regulation" (which, even under Democratic control, has long been deemed radical" and off the table, but is routinely trotted out by the GOP and telecoms as a sort of scary bogeyman, even if it never happens).

At this point, I tend to think that if this FCC passes net neutrality rules, they'll be so filled with loopholes as to be largely useless outside of egregious stuff telecoms never wanted to do anyway (like the outright blocking of websites). And if new rules are passed, I strongly doubt they'll be enforced with any consistency by an FCC that's generally timid when it comes to standing up to industry giants.

But in a few weeks or months, as the debate starts to rekindle, you'll see all kinds of missives seeded in the press by industry about how these net neutrality rules are akin to a socialist takeover of the internet." They'll, once again, be framed as unreasonably radical, even if the loophole-filled rules don't actually accomplish much and will never be enforced with any meaningful zeal.

The FCC has never done a particularly good job holding companies like AT&T and Comcast accountable. And as the rightward-lurching Supreme Court steadily chips away at regulatory independence, I highly doubt that's going to change anytime soon. The FCC is struggling to even map broadband or get Comcast to stop ripping consumers off with bullshit fees, much less tackle market failure.

It's why I tend to think that as the net neutrality fight returns to telecom policy conversation (deemed passe and irrelevant in the era of big tech debates), it remains important to keep the focus centered on market failure caused by regional monopolization and muted competition, resulting in the spotty, expensive, and slow broadband networks Americans have come to know and love so dearly.

With sagging regulatory authority coming up fast in the rear view mirror courtesy of the Supreme Court, it's going to be more important than ever to carefully pick battles and focus very specifically on the foundational problems that matter. And when it comes to broadband, it's unchecked monopoly power.