Column: The FCC’s move to restore net neutrality is overdue, and possibly too late

If you’re unhappy with the high cost and low quality of your internet service — and who isn’t? — the reason is easy to pinpoint.

It can be found in an ill-considered, cynical and overtly pro-business decision in 2018 by the Trump-controlled Federal Communications Commission to abdicate its authority over broadband internet service and repeal rules guaranteeing network neutrality, a core principle of the open internet.

As I wrote when the change was first proposed by the FCC’s Republican chair, the former telecommunications company lawyer Ajit Pai, consumers would inevitably feel the pain.

Internet service would become more expensive, and users would have less choice. Internet service would be dominated by a few big content providers, with smaller and potentially more innovative providers shouldered out of the way.

Every one of those predictions came true, I’m sorry to say.

Now there’s a glimmer of hope that the FCC could get its arms back around internet service. Current FCC Chair Jessica Rosenworcel, a former Democratic Senate aide, has proposed restoring the FCC’s authority over broadband providers as well as the net neutrality rules that were in place until Pai killed them.

The commission will vote Oct. 19 on whether to move ahead with the rule-making and start taking public comments.

One quick primer about the meaning of net neutrality. It means simply that internet service providers can’t discriminate among content providers trying to reach you online — they can’t block websites or services, or degrade their signal, slow their traffic or, conversely, provide a better traffic lane for some rather than others.

The principle is important because control over traffic gives ISPs tremendous power, especially if they control the last mile of access to end users, as do cable operators such as Comcast and telecommunications firms such as Verizon.

Rosenworcel laid out her proposal in a Sept. 26 speech in Washington. Her starting point was the observation that broadband connectivity is no longer a luxury in the modern world.

“It is a necessity,” she said. “It is essential infrastructure for modern life. No one without it has a fair shot at 21st century success.”

Yet the 2018 repeal left the U.S. without any regulatory supervision of this crucial industry. Left to their own devices, broadband companies spent the intervening years continuing a preexisting trend away from competition and toward consolidation through mergers.

“That is why almost half of us lack high-speed service with 100 megabit-per-second download speeds or can only get it from a single provider,” Rosenworcel said. “In fact, only one-fifth of the country has more than two choices at this speed.”

As a result, she pointed out, “if your broadband provider mucks up your traffic, messing around with your ability to go where you want and do what you want online, you can’t just pick up and choose another provider …. You need a referee on the field looking out for the public interest — and ensuring your access is fast, open and fair.”

There’s nothing particularly new about Rosenworcel’s proposal — she’s merely aiming to restore the level playing field in broadband services established as long ago as 2004, during the George W. Bush administration.

The FCC’s regulatory initiatives came under court attack by the telecommunications industry, but the legal uncertainties were ultimately resolved under President Obama and FCC Chair Tom Wheeler in 2015. The commission’s ban on paid prioritization, blocking of content, and throttling — that is, degrading the signals from content the service providers wished to discourage for its own economic interests — remained in place until Trump’s team of vandals overturned them.

The telecom firms supported Pai’s initiative with a campaign of unexampled dishonesty. As New York Atty. Gen. Letitia James later disclosed, the industry flooded the FCC with millions of fraudulent public comments, many signed by nonexistent or dead people. Three companies that handled the commenting for the industry had to pay $4 million in penalties.

Pai cited that torrent of comments to justify his rollback of net neutrality; in fact, public opinion polls consistently showed 80% support for keeping net neutrality in place.

The vacuum of regulatory oversight was felt almost immediately.

While trying to quell the Mendocino Complex wildfire in Northern California in 2019, the Santa Clara County Fire Department discovered that its internet connection provider, Verizon, was throttling its data flow virtually down to zero, cutting off communications for firefighters in the field. One firefighter died in the blaze and four were injured.

Verizon managers refused to restore service until the Fire Department signed up for a new account that more than doubled its bill. Verizon later acknowledged that it should not have done that.

Telecom industry stooges maintained that the fiasco had nothing to do with net neutrality, since Verizon had the right to throttle traffic even before the policy change. But that’s wrong.

The change left the Fire Department with no regulatory recourse, because the FCC had withdrawn from virtually any oversight of internet services. As a result of the repeal, Rosenworcel said in her speech, “the FCC lacked the authority to intervene.”

The lack of federal authority over broadband has troubling implications not only for public safety, as it did in Santa Clara County, but for national security, cybersecurity, network reliability and privacy protection, Rosenworcel said. Federal officials have no authority to monitor outages or security standards. Rules guaranteeing privacy protection for telephone users exist, but not for anyone with a broadband subscription.

With the federal government missing in action, the task of enforcing network neutrality has fallen to the states. California was the first to enact its own rules, passing a law in 2018 that replicated the original FCC standards almost verbatim, with enforcement left in the hands of city attorneys, county district attorneys and the state attorney general. Maine, New Jersey, Colorado, Oregon, Washington and Vermont soon followed.

(By the way, when the California Legislature was debating its law, seniors in the state were inundated with robocalls claiming that the measure would raise cellphone bills by $30 a month and slow down their speeds, neither of which was true. One of the organizations behind the calls listed AT&T and Verizon as sponsors or supporters, though the companies disavowed responsibility for the calls.)

The state laws are a gratifying certification of public opinion, but Rosenworcel is right to say that it’s no substitute for consistent federal oversight. “When you are dealing with the most essential infrastructure in the digital age, we benefit from one national policy” rather than “a patchwork of state regulations,” she said in her speech.

Don’t be surprised if the telecom industry’s attack on Rosenworcel’s proposal exceeds the ugliness of its effort to support the rollback of net neutrality. Among other factors, big internet service providers have gotten bigger, richer and more entrenched since 2017, so they have more to lose by the revival of net neutrality.

The industry signaled its determination to keep net neutrality dead and buried through its despicable campaign against Gigi Sohn, President Biden’s original nominee for the vacant Democratic seat on the FCC.

Sohn was an uncompromising supporter of net neutrality and an outspoken critic of the FCC’s abandonment of its regulatory responsibilities. Her unquestioned expertise in telecommunications law would have made her a stellar spokesperson for the public interest as a commissioner.

So the industry defamed her with the filthiest, most dishonest smears imaginable, culminating in a burst of homophobic slurs. Faced with this onslaught, Sohn withdrew her nomination in March. Biden subsequently nominated Anna Gomez, who was confirmed by the Senate last month, finally giving Rosenworcel the majority she needs to push her policies forward.

The only question is whether she’s too late. In government, it’s often harder to correct a mistake than to commit it in the first place.

There’s no question that the FCC’s repeal of network neutrality and its abandonment of broadband oversight were blunders of the first order. Making the internet fulfill its role as an indispensable utility in the modern age may be the most important imperative on the FCC’s agenda.