We knew this was coming. The six-month delay from the date of the Federal Communications Commission’s controversial repeal of net neutrality was essentially about red tape; on Monday, the full terms of the repeal take effect.
So what does this mean for efforts to stop the repeal and, more importantly, for your internet connection?
For now, not much. Basically, very little has changed since last month, when Congress’s last-ditch attempt to cancel the repeal under the Congressional Review Act (CRA) made headlines. The measure passed in the Senate, but it’s extremely unlikely to pass in the House, where canceling the repeal is deeply unpopular with the majority of Republicans despite the fact that more than 80 percent of Americans support net neutrality.
If Congress’ attempt fails, there are still other avenues through which lawmakers and citizens can fight the repeal process. But they’re slow and fraught with a lot of litigation — and they won’t necessarily stop internet service providers like Verizon or Comcast from throttling your bandwidth in the meantime. Here’s a glimpse at what’s next.
Net neutrality’s best chance at survival lies with the courts
Shortly after the repeal went through in December, all 22 states with a Democratic attorney general, led by New York, signed on to a joint lawsuit against the FCC to revoke the new rules. While a court proceeding would take longer than a simple congressional block, given that that congressional block is currently languishing in the House, it could be the best chance we have at weaving net neutrality protection into the fabric of internet law.
The collection of suits (which also included objections from consumer advocates and tech companies) petitioned the US Court of Appeals for a review of the FCC’s order and were eventually punted to the U.S. Circuit Court of Appeals in D.C.
Judges serving D.C. have presided over previous cases involving net neutrality three times in the last decade, and are well-equipped to understand the complexities of the case — meaning the location could be the most crucial factor in whether the repeal ultimately takes effect.
That said, a court fight will be long and messy. Currently, no date has been set for the court proceedings to begin, and in the meantime, the deregulation will proceed. It’s also possible that even if a court overturns the FCC’s decision, it may only overturn part of it.
The FCC has explicitly blocked states from trying to legislate their own versions of net neutrality — though some are trying anyway
You might think that individual states could have the right to legislate their own net neutrality protections, but you’d be wrong. The FCC repeal included language that explicitly excluded individual states from enacting consumer protection laws because it’s easier on ISPs not to have to deal with different regulations from state to state. That means that as of today, the rights of states to govern themselves won’t apply to protecting net neutrality.
In essence, with all the legal complications at play, we just don’t have any way of knowing what the final court decision could be. What the final version of a net neutrality repeal might look like, and when it might take effect, are both unknown at this point.
Which leaves with the immediate reality that net neutrality is now officially over.
If nothing is done to protect it, net neutrality will ebb away slowly, rather than all at once
Net neutrality activists like Fight for the Future have predicted that encroaching moves by corporate ISPs will be gradual and insidious rather than sudden and overnight. For one reason, the court situation is still a giant mess, so rolling out significant changes while the courts are still deciding the fate of the repeal could be disastrous.
For another, corporations won’t want you to notice the difference. It’s easier to get the public to accept a gradual fee hike or change in the structure of your internet service over time than it would be to, for example, abruptly start charging you extra for access to your favorite websites.
Gradual change will also give the ISPs time to ride out the public’s mistrust, perhaps by claiming that net neutrality went away and the world didn’t end. While that might be true at first, internet freedom advocates have fought so hard to preserve net neutrality because there’s ample precedent that ISPs want to, and will, control what content you can access if they aren’t prevented by law from doing so.
For example, your ISP might charge you more or less to access specific “bundles” of certain websites, much as cable television providers do now — but instead of “basic cable,” you might be forced to pay for access to more than a “basic” number of websites. ISPs will also be able to control how quickly you’re served webpages, how quickly you can download and upload things, and in what contexts you can access which websites, depending on how much money you pay them.
They’ll be able to charge you more to access sites you currently visit for free, cap how much data you’re allowed to use, redirect you from sites you are trying to use to sites they want you to use instead, and block you from being able to access apps, products, and information offered by their competitors or other companies they don’t like. They can even block you from being able to access information on certain topics, news events, or issues they don’t want you to know about.
Finally, they’ll be able to exert this power not just over individual consumers, but over companies as well. This could result in the much-discussed “internet fast lane,” in which an ISP forces a company like Twitter or BitTorrent to pay more to give users faster access to its services. Many ISPs, notably Comcast, have their eye on this feature, also known as “paid prioritization.” (Disclaimer: Comcast is an investor in Vox’s parent company, Vox Media, through its NBCUniversal arm.) Larger, more powerful companies likely won’t be hurt by this change. Smaller companies and websites almost definitely will be.
We already have a good idea of how these scenarios might play out because before the 2015 FCC ruling protecting net neutrality, ISPs tried instituting all of them: via jacked-up fees, forced redirection, content-blocking, software-blocking, website-blocking, competitor-blocking, app-blocking and still more app-blocking, data-capping, and censorship of controversial subjects.
There’s also ample, well-founded concern that the lack of net neutrality regulation will disproportionately hurt minority communities, thwart technological innovation, particularly among small internet businesses, and block broadband expansion in rural communities that already have limited access to internet services.
If net neutrality advocates have made it seem like there’s simply no end to the worst-case scenarios that unregulated ISPs might subject us to, it’s because they’ve learned from experience. This history of ISP exploitation is a major reason that advocates for net neutrality fought so hard for it to begin with.
Lest you believe that the current FCC is prepared to make sure that such offenses are fully sanctioned and dealt with by the government, think again. FCC Chair Ajit Pai is a vocal proponent of letting ISPs self-regulate and seems perfectly content to ignore their contentious and often predatory history.
This is the reality of a deregulated internet. While it’s good for consumers to stay alert to any potential changes, the blunt truth is that the window of time for saving net neutrality is closing rapidly. The best action for citizens to take on behalf of net neutrality is to lobby the House to vote on the Congressional Review Act — but the likelihood of the House actually doing so is very small. So unless the courts step in and block the repeal, which could take months or longer, net neutrality is over.
At this point, all we can do is wait.
Correction: A previous version of this article reported that the consolidated lawsuit against the FCC had been filed in the San Francisco Court of Appeals. The case was actually transferred from San Francisco to the D.C. Circuit Court following a petition from the plaintiffs.