The US net neutrality landscape is now fragmented and weird

net neutrality
Image credit: Brian A. Jackson

ITEM: A US appellate court has ruled that the FCC has the authority to set its own federal net neutrality policy. However, the court also ruled that individual states can legally create their own net neutrality rules.

As you may remember, after the FCC – led by current commissioner Ajit Pai – scrapped the 2015 net neutrality policy approved by President Obama, a number of state legislatures wrote and passed their own net neutrality rules. The FCC declared that states can’t do that. Last year, a consortium of pro-neutrality advocates led by Mozilla and 22 state attorney-generals sued the FCC, arguing it couldn’t legally ditch the 2015 policy and prevent states from creating their own.

On October 1, the Washington DC circuit court of appeals ruled that FCC had the legal power to create a federal net neutrality policy, but it doesn’t have the authority to automatically prevent states from passing their own rules. The commission can always challenge those rules individually, but it needs a better reason than ideological differences over how neutrality should be regulated.

The case can still be appealed, but until that happens, the result is a fragmented regulatory landscape of up to 50 different sets of net neutrality rules that would be a pain to navigate unless ISPs elect to comply with the strictest state law (which currently is in California). That would assure compliance in the other states, but comes with the painful irony of complying with net neutrality rules that are even tougher than the 2015 policy the FCC rejected.

Naturally, this is a nightmare scenario for ISPs who much prefer a clear federal net neutrality policy. But that’s difficult because US communications laws are badly out of date – the FCC is forced to regulate 21st Century comms with 20th Century regulations. Commenting on the ruling, Jonathan Spalter, president and CEO of trade association USTelecom, said in a statement what telcos really want is for Congress to pass an updated (and ideally future-proofed) law that sets a clear framework for an open internet and isn’t subject to the whims of whoever is in charge of the FCC at the time:

Congress must end this regulatory rinse and repeat cycle by passing a strong national framework that applies to all companies, maintains our dynamic and open internet, and sustains our global digital leadership for the next generation and beyond.

As it happens, net neutrality advocates feel the same way, even if they might not agree on what form that law might take or what counts as “open internet”.

Unfortunately, both sides have had the bad luck of needing this at a time (i.e. roughly the last ten years) when Congress has been mired in hyperpartisan gridlock.

That could change after next year’s election in 2020 – though personally I would be surprised if it did, regardless of who wins. Either way, it’s a certainty that the net neutrality debate will drag on, though it’s less certain what direction it may go.

Washing machines and the internet subway

In any case, for me the most interesting aspect of Mozilla vs FCC is that the details of the ruling indicate just how twisted the whole net neutrality debate has come.

Nilay Patel at The Verge has a great summary of the ruling here showing how the judges’ legal reasoning behind the decision is both technologically illiterate and occasionally weird to the point that the legal battle over net neutrality isn’t really about net neutrality at all.

As Patel correctly points out, ten years ago net neutrality was a simple policy proposition: ISPs should not be able to block, throttle, or otherwise interfere with internet traffic outside of normal network management, whether the reason is political, anti-competitive or whatever.

That’s it. That’s net neutrality in 30 words or less. At least it was back in the late 2000s.

In the nearly 200 pages comprising the DC circuit court’s ruling, this fundamental definition of net neutrality doesn’t come up once. Instead, Patel writes:

… the legal side of net neutrality has become an exercise in lawyers making fine-grained arguments about whether washing machines can make phone calls, whether consumers with a single broadband provider still experience the benefits of competition, and whether or not federal regulations can override state law if the federal regulations don’t actually exist.

I recommend reading the whole thing just to experience metaphors such as “DNS is like invisible signs on the internet subway”, and the notion that classifying a mobile operator as a telecoms service or an information service hinges on whether a person with a mobile phone can place a call to a smart washing machine. To say nothing of the Macbeth quote.

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