Where Net Neutrality Is Today and What Comes Next: 2021 in Review

When all is said and done—and there are some major steps to take in 2022—the United States will mark 2021 as the last year without federal net neutrality protections. Next year is when we will undo the 2017 repeal and once again put the Federal Communications Commission (FCC) back to work doing its job: protecting consumers from bad actors, working towards universal and net-neutral internet access, and accurately assessing the playing field in telecommunications.

With President Biden’s appointments of Chairwoman Jessica Rosenworcel and Gigi Sohn, a net neutrality pioneer, to staff the FCC’s leadership team, we can usher in a better era. Both appointees made clear their support for the 2015 Open Internet Order and belief that the FCC should begin a process to re-establish federal authority over broadband carriers, including network neutrality rules. More fights lie ahead when the new federal rules are established but let’s review what’s happened so far and what they mean for protecting your access to the Internet.

The Pandemic Has Changed How We Use the Internet

At its core, the necessity for net neutrality protections rests on one simple fact: people don’t want their broadband provider to dictate their experience online. It’s a need that only grew during the pandemic.

As the country rapidly transitions education, social activities, and jobs to rely on a persistent, open, and non-discriminatory connection to the world, views of access have shifted. Today, an eye-popping 76% of American Internet users consider internet service to be as important as water and electricity in their daily life. But unlike those utility services, internet access is subject to the whims of private carriers for a large number of American users.

People do not like that power imbalance, and they should not settle for it. They pay for access, the providers are exceedingly well compensated for access, and the Congress set aside nearly $20 billion in funding to help people afford broadband access. Yet major broadband providers such as AT&T, Comcast, and Verizon still resist the notion that their role as essential service providers should not mean rules that protect consumers should apply to them.

California’s Law and the Role of State Power to Protect Consumers

Right now California’s net neutrality law (SB 822) is being reviewed by the Ninth Circuit after the state’s Attorney General prevailed in the lower court. The law is now in effect in California, forcing carriers to abandon things that contradicted net neutrality such as AT&T self-preferencing its online streaming service HBO Max. We were glad to see the law get rid of a business practice that has generally been shown to make broadband access more expensive while negatively impacting the competitive landscape among services and products. No one likes it when a broadband carrier decides the products it owns should run “cheaper” by simply making alternatives on the internet more expensive to use, but that was exactly what AT&T was doing. If the 2015 Open Internet Order was still in effect, the federal rules would have blocked this practice as the FCC was investigating it as a net neutrality violation.

The battle over California’s law makes clear that ISPs like AT&T, Verizon, and Comcast didn’t ask Aijit Pai’s FCC to abolish net neutrality protections because it was an overreach of the federal government or because the FCC didn’t have the authority. It was because they wanted to be free of any consumer protections, at any level. They know they sit on an essential service that people literally cannot live without, but they want to be in complete control over what you have to pay, how you get it, and how you are treated by them. But it doesn’t work that way. The ISPs can’t have the FCC give up its authority and prevent the states for stepping in on behalf of their residents.

Remember, California was the state where Verizon was caught throttling a firefighter command center during a wildfire. California has a demonstrated need to regulate ISPs in the interest of public safety. The state in fact passed AB 1699 by Assembly Member Mark Levine the year after SB 822 to explicitly ban Verizon from throttling first responder access at times of emergency. This law was also opposed by the CTIA, which represents Verizon because even though they know they were completely wrong, they don’t want to be regulated at any level.

The importance broadband access has for health, education, work, economic activity, public safety, and nearly every facet of everyday life cannot be understated. That makes the legal question as to whether states can protect their citizens in the absence of federal protections an extremely important one where we at EFF hope California prevails.

If California were to prevail, there is little reason why consumers will need to rely exclusively on the FCC to protect their access to the internet when they can go to their Governors’ and state elected officials. Victory at the 9^th Circuit would not only enshrine net neutrality for the 5^th largest economy in the world, but it would inoculate California citizens from the whims of DC. Furthermore, it would likely protect federal net neutrality because reversing it at the federal level would have less of an impact on broadband access and would be less attractive to the major ISPs that started us down this path in the first place.

We Will Fight to Push the FCC to Adopt New 21^st Century Net Neutrality Rules in 2022?

Net neutrality will always be pushed so long as the public continues to want and fight for it. Much to the chagrin of ISP lobbyists (though they get paid to do the bidding of their employers of perpetually opposing net neutrality), no one intends to let net neutrality just go away. EFF represent the public’s desire for the FCC to begin the process of restoring the rules. Chairwoman Rosenworcel stated clearly she intends to revisit the reinstatement of net neutrality rules in 2022. Once the Senate confirms Gigi Sohn as the 5th Commissioner to the FCC, the work will begin.

At a minimum, California’s state law establishes the basic floor of what net neutrality should look like federally, but even those rules were written in a pre-pandemic world. When broadband access is on par with access to electricity and water for most people, the rules should reflect that importance from the FCC. In fact, hundreds of organizations petitioned the incoming Biden Administration at the start of this year to issue rules that prohibited the disconnection from critical services such as water and electricity regularly would include broadband access.

Furthermore, when Americans were forced to switch to remote access to engage in social and economic activity, ISPs that still retained data caps opted to lift them. But less than a year into the pandemic with vaccinations just starting to come into circulation, these ISPs reversed themselves and restored artificial scarcity schemes despite home usage skyrocketing due to realities on the ground. In other words, despite the fact that internet usage was necessarily rising due to remote work and remote education, and despite solid profits, companies like AT&T decided they needed to make broadband access even more expensive for users. This is despite the fact that a multi-billion emergency benefit program came online to provide generous subsidies to ISPs at $50 a month ensured that no one would miss their bill and disrupt the carriers’ revenues. Should the power remain completely in the hands of the ISP to decide the entirety of your future connection to the internet? EFF does not believe so and we will fight for consumers next year at the FCC to ensure that the rules firmly empower users, not ISPs.

This article is part of our Year in Review series. Read other articles about the fight for digital rights in 2021.