Five things to know about the return of net neutrality rules

The Federal Communications Commission (FCC) is set to vote Thursday to restore Obama-era net neutrality rules. 

Here’s what you need to know: 

What is net neutrality? 

Net neutrality refers to the principle that internet service providers should treat all information that travels through their networks equally. 

Under the FCC’s proposed rules, providers would be barred from blocking or throttling internet traffic to some websites and speeding up access to others that pay extra fees. 

Why is the FCC voting on net neutrality again? 

Net neutrality rules, which were first approved by the FCC under former President Obama in 2015, were repealed by the commission during the Trump administration in 2018. 

Last October, the FCC voted to move forward with the process of restoring net neutrality rules, after securing a Democratic majority following a two-year holdup over a previous nominee. The vote was 3-2 along partisan lines. 

“It’s kind of like deja vu,” Christopher Niebuhr, a senior research analyst at Beacon Policy Advisors, told The Hill. “This really is an Obama-era redux, in a sense. It’s a very similar rule, and it’s a pretty similar debate.” 

What is the debate over net neutrality? 

Advocates for net neutrality, like Democratic FCC Chair Jessica Rosenworcel, have argued that it is necessary for ensuring a fair and open internet. 

“[The pandemic] made crystal clear that broadband is no longer just nice to have,” Rosenworcel said in remarks in September. “It’s needs to have for everyone, everywhere. It’s not a luxury; it’s a necessity. It is essential infrastructure for modern life.” 

“No one without it has a fair shot at 21st century success,” she continued. “We need broadband to reach 100 percent of us, and we need it to be fast, open and fair.” 

The FCC chair has also argued that net neutrality rules would give the agency greater oversight of broadband companies, allowing it to address outages and national security concerns and increase consumer protections. 

Republican Commissioner Brendan Carr, who opposes the effort to restore net neutrality, reflects the other side of the debate. He and other critics have argued that net neutrality rules would expand government control over the internet to solve a problem that has not been particularly pervasive. 

“When my Republican FCC colleagues and I overturned the Obama Administration’s failed, two-year experiment with government control of the Internet in 2017, Title II proponents predicted the ‘End of the Internet as we know it’ and that ‘you’ll get the Internet one word at a time,’” Carr said in statement earlier this month. 

However, he added, “None of the apocalyptic predictions came to pass.” 

How has the debate changed since 2015? 

While the net neutrality debate is largely the same as it was in 2015, there are “some specific differences that come with the context of new technologies and just what’s happening in 2024,” Niebuhr said. 

The emergence of 5G technology and network slicing has created a new wrinkle in the net neutrality discussion. Network slicing allows for the creation of multiple virtualized subnetworks on the same physical network. 

Mobile operators argue that network slicing should not fall under net neutrality rules, while opponents allege that this would allow for the kind of prioritization the net neutrality hopes to avoid. 

The FCC ultimately decided not to weigh in on the issue in its latest proposal, given the “nascent nature” of the technology. 

What happens next? 

With its Democratic majority, the FCC appears likely to vote to restore net neutrality rules on Thursday. Such a move seems likely to prompt lawsuits from industry groups once again, as it did in 2015. 

While the Obama administration saw some success in court, two former solicitors general warned in a legal analysis funded by two industry groups last September that restoring net neutrality rules would be a “wasted effort” because it would be struck down by the Supreme Court.

Former Obama administration solicitors general Donald B. Verrilli Jr. and Ian Heath Gershengorn argued that the FCC’s potential decision to revive net neutrality rules would likely be taken up by the Supreme Court under the major questions doctrine and that the agency would have difficulty showing it has “clear congressional authorization” for the move. 

Niebuhr similarly noted that the high court has increasingly taken a “more skeptical view towards agency deference” in recent years, and its rulings in several high-profile cases this term on agency power could influence potential decisions on net neutrality.

However, the upcoming election in November will also likely play a role in the future of net neutrality rules, he added. 

“Of course, a lot of this is in context of the election,” Niebuhr said. “I think if Donald Trump wins reelection, very similar to last time, we would see him nominate an FCC commissioner who could and would likely overturn the rule.”