By Barbara van Schewick
November 22, 2017

Earlier this week Federal Communications Commission (FCC) Chairman Ajit Pai announced a radical plan to undo the net neutrality protections that have been in place in the U.S. since the beginning of the Internet. He wants to eliminate the protections that have kept companies such as Comcast, AT&T, and Verizon from blocking sites, slowing down or speeding up applications, and charging sites just so their websites load for an Internet service provider’s (ISP) subscribers.

Since its inception, Internet access in the U.S. has been guided by one basic principle: ISPs that provide the on-ramps to the Internet should not control what happens on the Internet.

Originally, this principle was built into the architecture of the Internet. In the mid-1990s, however, technology emerged that allowed ISPs to interfere with the applications, content, and services on their networks.

In the face of this threat, the FCC took enforcement actions that stopped discriminatory conduct, imposing merger conditions, attaching requirements to stimulus grants for broadband services and to certain parts of the wireless spectrum, and, in 2010 and 2015, promulgating enforceable rules.

The FCC’s decades-long commitment to and enforcement of this basic principle—that ISPs don’t get to pick winners and losers on the Internet—means Internet users in the U.S. haven’t had to worry about whether ISPs might block or discriminate against certain kinds of content or applications. Entrepreneurs who have an idea for a new application have not needed permission from ISPs in order to innovate and have been able to realize their ideas at a low cost. This is a well-oiled free market at work.

In sharp contrast to Pai, past Republican chairmen have recognized the threat broadband providers can pose to the Internet’s unparalleled openness and acted decisively to prevent interference by these gatekeepers.

In 2004, then Republican Chairman Michael Powell publicly warned broadband companies not to interfere with the vibrant, free markets for Internet content, applications, and services.

“Giving broadband consumers the access they want is not a matter of charity but simply of good business. Network owners, ISPs, equipment makers, content and applications developers all benefit when consumers are empowered to get and do what they want,” Powell said. “This is why ensuring that consumers can obtain and use the content, applications and devices they want—is critical to unlocking the vast potential of the broadband Internet.”

Powell paired his rhetoric with action. DSL service had been classified since the mid-1990s as a common carrier service under Title II of the Communications Act, which prohibits blocking and unreasonable discrimination. So when Madison River, a DSL provider in North Carolina, blocked the online telephony service Vonage to protect its legacy landline business in 2005, Powell did not hesitate to use Title II to fine Madison River and make it stop blocking online calls.

That’s the very section of the Communications Act that Pai now says is killing the Internet.

Chairman Kevin Martin, Powell’s successor and a fellow Republican, vigorously investigated Comcast for secretly blocking peer-to-peer applications and forced it to stop the practice. Like Powell, Martin also attached net neutrality conditions to telecom mergers, and went even further by attaching lifetime net neutrality conditions to parts of the 4G spectrum that it auctioned off in 2008.

The true history of net neutrality in the U.S. isn’t that it magically showed up in 2015; it’s the story of big broadband providers pushing back at net neutrality protections for 15 years.

When blocking was found unacceptable, ISPs declared they intended to charge websites for access to ISP subscribers. When that led to a public outcry and draft bills in Congress, they came up with the idea charging websites for a fast lane to ISP subscribers.

And when the FCC’s 2010 rules foreclosed charging websites for data traveling inside an ISP’s network, they found a way to charge websites at the point where data entered the ISPs’ networks. To do that the six largest broadband providers refused to widen the pipes into their networks, slowing access to huge swaths of the Internet for millions of Americans.

As ISPs have found new ways of distorting open markets, the scope of the behavior the FCC has protected against has increased, in a classic game of cat and mouse. Simultaneously, ISPs systematically used lawsuits to chip away at the legal foundations of net neutrality protections so that by 2014, only Title II was left standing.

So in 2015 the FCC decided to anchor light-touch net neutrality protections in the firm legal ground of Title II of the Communications Act, which defines broadband providers as “common carriers.” The FCC chose not to apply the majority of Title II provisions such as rate regulation, and the light-touch model has worked.

The rules have been upheld twice by a federal court; ISPs retain incentives to invest in their networks; and online businesses and startups continue to launch new services. The rules are popular across the political spectrum, and even ISPs now have to pay lip service to an open Internet, even if what they mean in practice isn’t net neutrality at all.

Verizon, for example, told a federal court in 2013 that it believed in a no-blocking rule, so long as it could charge any online service whatever amount it wanted to get to Verizon’s subscribers—and be able to cut off websites that didn’t pay up. But that’s exactly what no-blocking is meant to protect against.

Despite ISPs’ clearly stated threats and attempts to circumvent net neutrality protections, Pai wants to unilaterally disarm the FCC and move broadband providers from light-touch regulation to no regulation.

That would be disaster for the Internet ecosystem. The U.S. has always had a free and open Internet precisely because of net neutrality protections.

The only danger now is Pai catapulting us into a future without it.

Barbara van Schewick is an expert on net neutrality, a professor at Stanford Law School, and the director of the Stanford Law School Center for Internet and Society. She is the author of Internet Architecture and Innovation. Follow her on Twitter.

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