Could net neutrality make a comeback?

House and Senate Democrats introduced a bill last week that aims to bring back net neutrality. The rules were originally put in place by the Barack Obama administration in 2015 to prohibit internet providers from selectively favoring, blocking or slowing content on the internet.

The Donald Trump administration rolled back those rules, arguing that the Federal Communications Commission didn’t have the power to enforce them.

The new bill faces long odds of passing, but it would, once more, give the FCC oversight of internet service providers, or ISPs.

Marketplace’s Meghan McCarty Carino speaks with Ryan Singel, an open internet fellow at Stanford Law School’s Center for Internet and Society. He said the legislation does this by changing how internet service is categorized. The following is an edited transcript of their conversation.

Ryan Singel: There’s kind of two buckets the FCC can put things in. And so one is an information service, and that’s things like email or Google or, back in the day, America Online. And the FCC has virtually no power if they put something in that bucket. And then there’s the communication bucket, so something like a phone service. If the FCC puts a service in that bucket, then it has a lot of power. [The FCC] can police companies in that bucket for a wide range of unfair conduct. So what this bill does, it tells the FCC broadband service that gets people online is always in that bucket, and you have power over it.

Meghan McCarty Carino: Since the net neutrality rules were repealed in 2017, I mean, what has actually changed with internet companies?

Singel: Not a ton, though we have seen some things. So for instance, if you want to watch a video on your mobile device, if you’re not paying at the top-tier level, you don’t get top-tier quality video. So but by and large, mostly due to California, the [internet service providers] have been on their best behavior. So California stepped in with very strong rules, and so they largely didn’t do the things that they had done previously. Like from 2013 to 2015, they throttled Netflix in order to get Netflix to pay them, etc.

McCarty Carino: What would be the worst-case scenario without any net neutrality rules in place?

Singel: I mean, the worst-case scenario largely happened before. ISPs have long wanted to get paid twice, so both by you and me to, you know, go and visit whatever website we want. And then the ISPs also want every website and service in the world to pay them as well. And the only way to do that is to degrade the quality of their connections until they pay up. So this happened from 2013 to 2015. Netflix and other services slowed down for tens of millions of Americans. Everybody screamed and howled, and companies like Comcast and Verizon and AT&T said, “What are you going to do? You can’t switch. So we’re just going to make Netflix superslow until Netflix pays us.”

And so then Netflix eventually paid, some other companies paid, some held out and just dealt with having terrible quality. And then in 2015, when the FCC passed strong net neutrality rules, that kind of behavior, that kind of shakedown, stopped. So the worst-case scenario, realistically, is just that a lot of services slow down, every website in the world has to start paying a tax to AT&T, Verizon, every ISP in the world. And we get terrible internet service, and we can’t figure out why because we’re paying a lot of money for good service. And yet, the videos we want to watch, we can’t, and the free services that we rely on can’t be free anymore because they need to pay a tax to AT&T and Verizon, etc.

McCarty Carino: What could this legislation mean for competition in this space? I mean, will consumers see a difference?

Singel: Yeah, I think so. We saw when California passed its law and said that you can’t give favored service to your own properties, AT&T stopped giving preference to its video service. So with this rule, we could see increased competition, we could see data caps go up, we could see speeds go up. So there are things beyond just whether or not a site gets blocked or slowed down that affect people’s everyday lives. For a lot of people, they have to watch their data, they’re worried about are they going to be able to watch the videos and do the homework that they need? Or are they going to have to not use the home connection and not use their phone and go to a Taco Bell in the parking lot and use the Wi-Fi there? So this would help spur competition and hopefully get us to the point where broadband is supercheap, superfast, superreliable.

Related links: More insight from Meghan McCarty Carino

Here is the Net Neutrality and Broadband Justice Act if you want to read. It’s only two pages long.

As I said, the bill is far from a sure thing. It needs a filibuster-proof majority of 60 votes in the Senate. The Joe Biden administration has long had its sights set on restoring net neutrality. Last year, FCC Chairwoman Jessica Rosenworcel was on “Marketplace Tech.” She said an act of Congress, like this bill, would be the most surefire way to bring it back, but in the absence of lawmaking, FCC commissioners could choose to rewrite the rules as they have in the previous two go-rounds.

Right now, the commission doesn’t have the votes to push that change through because it’s split evenly, with two Democrats and two Republicans. Biden’s nomination for a tiebreaking vacant seat, Gigi Sohn, has yet to be confirmed by the Senate.

Axios reported in June that efforts to court votes have continued behind the scenes, but the clock is ticking down before the August recess starts next week and the midterm elections happen after that.

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