Net Neutrality, Take Two

Feb. 19, 2014, 9:48 PM UTC

By Steve Benen, Steve Benen

Reporters take notes during a panel discussion at the U.S. Capitol, Jan. 19, 2012. — Reporters take notes during a panel discussion at the U.S. Capitol, Jan. 19, 2012.

For proponents of net neutrality, it was a deeply disappointing setback. But it wasn't long before a group of congressional Democrats unveiled the Open Internet Preservation Act, which would create a legal framework empowering the FCC to require telecommunications companies to treat all websites equally. Overcoming Republican opposition, however, would be nearly impossible.

So the FCC is rolling out its new net neutrality policy, 2.0.

The plan represents a reboot of sorts for the regulator. A federal appeals court ruled last month that the F.C.C.'s previous rules illegally treated Internet service providers as regulated utilities, or common carriers, the same as telephone companies. But the court said that the commission did have authority to oversee broadband service in ways that encouraged competition and the expansion of broadband. In essence, that ruling, by the United States Court of Appeals for the District of Columbia, expanded the commission's oversight, prompting the regulator to introduce the latest plan. The new rules, much like the old ones, would try to restrict discrimination -- that is, a broadband service provider would need to follow guidelines that aim to treat all content equally, or face possible enforcement action.

How will this be any different from the FCC's neutrality policy, 1.0?

For the most part, it's not different at all. The FCC appears to have come to the conclusion that the federal appeals court struck down the previous rules because the agency didn't have the proper legal authority to regulate the major telecoms. So in the new policy, as the New York Times reported, the FCC "will cite another section of the law for its authority."

As for why President Obama and others take the issue so seriously, let's briefly review what net neutrality is all about.

For those who missed last week's piece on this, the general thrust of the policy is about making online content equally accessible to users, regardless of service providers.

For example, imagine an online landscape in which your service provider had a package of preferred websites -- customers could access those sites quickly and easily, and they would function as they're supposed to. But the telecoms also had websites with unfavorable status -- when customers tried to access sites the service provider doesn't like for whatever reason, maybe the sites would load slowly. Maybe consumers would have to pay more to access them. Maybe both.

Many consumer advocates think that's unfair -- service providers shouldn't be in a position, the argument goes, to make website access easier or harder based on the telecoms' business decisions. The point of net neutrality is to create a level playing field, prohibiting service providers from playing favorites.

That's the policy the Obama administration adopted, and it's the same policy the D.C. Circuit struck down last month, leaving officials scrambling for an alternative. (Republican Sen. John Thune, the co-chair of the Congressional Internet Caucus, argued two weeks ago that if the telecommunications companies can make it easier or harder for consumers to access websites based on the company’s business deals, it means entrepreneurs can “create economic growth.”)

The FCC is now moving forward with another try. The next legal challenge should be expected immediately after the new rules are announced.