Eniola Olabode, '27 Winter 2024

PDF available with citations and footnotes here

In the rapidly evolving landscape of the digital age, the concept of net neutrality has emerged as a pivotal and contentious issue, shaping the dynamics of internet access and usage in the United States. The internet has become an indispensable aspect of modern life, and consequently, a need for the formation of universal regulations and net neutrality principles has arisen. The debate of the use and implementation of net neutrality has been discussed by legal scholars extensively. However, the mechanisms behind net neutrality law changes have been analyzed less so. To accurately discern the future of net neutrality, one must take a critical approach to the process of federal regulations. 

Federal Regulation: A Brief History

The authority for the executive branch to enact regulatory laws in various areas is derived from several sources within the Constitution and subsequent acts of Congress.  The Constitution itself never explicitly grants regulatory powers to the executive branch. Thus, the delegation of regulatory authority has been facilitated to the Executive through specific statutes passed by Congress. One key piece of legislation that has played a significant role in empowering the executive branch with regulatory authority is the Administrative Procedure Act (APA) of 1946. The APA establishes the procedures for the creation and application of administrative regulations, providing a framework for agencies to promulgate rules and regulations in various policy domains. The APA has since been lauded as a Constitution/Bill of Rights for Federal Agencies. The act was able to standardize and restrict what critics were beginning to call the fourth branch of government in a time of mass executive expansion under the Roosevelt Administration. 

Many federal agencies already existed prior to the formation of this “Federal Agency Constitution,” one such being the Federal Communications Commission. The Communications Act of 1934 combined and organized federal regulation of telephone, telegraph, and radio communications. The Act created the Federal Communications Commission (FCC) to oversee and regulate these industries. The Act is updated periodically to add provisions governing new communications technologies, such as broadcast, cable, satellite television, and of course the internet. The largest “expansion” of the act came in 1996 with the Telecommunications Act, the first piece of federal legislation ever passed to address the internet. However, expansion is hardly the correct term to use. The Telecommunications Act of 1996's was campaigned as regulations that would make it easier to enter the media/broadcasting industries. Instead of making the market more competitive, the act actually deregulated the industry in ways that allowed the first media monopolies to formulate. Viacom, Time Warner, and other corporations were allowed to merge cable and broadcast markets, giving consumers less choice in which media they consumed. Many of the companies that benefited from the Telecommunications Act of 1996 were the same companies that sued, lobbied, and advocated for the end of net neutrality in 2018. But we’re getting ahead of ourselves. Let’s start at the beginning.

The Birth of Net Neutrality

The term “Net Neutrality” first gained momentum in 2002, 6 years after the Telecommunications Act was passed. It was coined by Columbia University Professor Tim Wu and echoed by Michael Powell, the chairman of the FCC at the time. By 2003, multiple congressional leaders had begun drafting legislation to extend or reform the Telecommunications Act of 1996 to include these principles of a free and fair internet market. Many, if not all, of these net neutrality bills failed due to a lack of bipartisan support in Congress, despite popular support across parties by the American people. It is obvious that division in political factions has a premier influence on legal change. But in the past voter mobilization was able to overcome Congress stalemates at a time where the Internet was nowhere near the size as it is now. You would think that on the ground efforts to push for an Open Internet would be way larger today, but the 2009-2010 era remains the most significant instance of an organized public movement for net neutrality. At that time, it was companies like Google and Yahoo, underdogs then, who backed petitions and created higher visibility of the exploitation of companies by Internet Service Providers like Verizon and Comcast. Nowadays companies are well aware there are more efficient, quicker, easier ways to attain legal change. The Executive has the power to fill in where Congress is left stalling.

The inability of Net Neutrality to overcome the bipartisan divide should have in theory, killed the Net Neutrality question right there in its tracks, at least until the American people were ready to force Congress to bring the issue forth once more. But it wasn’t Congress who resurrected the Net Neutrality question, it was the executive branch. In 2015, the Obama Administration reclassified the Internet as a common carrier service in the “Open Internet Order”. The Order took an aggressive net neutrality stance by banning three main practices — blocking, throttling, and paid prioritization — by big internet companies.  The FCC passed this order and references the standards and expectations set forth by the APA in the first section of the first page. If the APA and Judicial Review by the Federal Courts is all it takes for Federal Agencies to “enact rules” (pass legislation), then why waste time with Congress? 

There is historical precedent and constitutional language supporting that the executive was meant to be the fastest arm of the government. The President is meant to be able to act quickly to meet the present needs of the nation. But that is also why the ability to legislate was not given to the president but to Congress, the slowest of branches. 

Net Neutrality is simply the fruition of what happens when you cut corners in what should rightfully be a careful, long process of creating legislation. There are many benefits to this ability to rush the legislative process, speediness being the most apparent. But nothing built by cutting corners will last long. 

The End of Net Neutrality

In December 2017, the “Restoring Internet Freedom” rules repealed the Open Internet Order of 2015. Led by Chairman Ajit Pai, the FCC, under the Trump Administration, voted to dismantle the net neutrality rules that had been implemented during the Obama Administration. The Restoring Internet Freedom Order was rooted in a belief, particularly among Republicans and the Trump Administration, that the existing net neutrality regulations imposed undue regulatory burdens on internet service providers (ISPs) and hindered investment and innovation. Chairman Pai argued that a more hands-off approach would foster a more competitive and dynamic broadband market, ultimately benefiting consumers. The order rolled back the Title II classification of ISPs, which had treated them as common carriers under the Communications Act of 1934. This reclassification enabled the FCC to enforce stronger net neutrality rules, prohibiting ISPs from blocking or throttling internet traffic and from engaging in paid prioritization. 

So to recollect, the Democratic party wanted to pass internet laws through Congress for the good of the American people, but the party historically against centralization and regulation of markets prevented it, so the Democratic party got around it by reclassifying the internet as something under the jurisdiction of the executive, thereby allowing a Democrat-controlled executive to do as they pleased. Surprisingly, when the Republican party assumed control of the executive, all of this was reversed. 

Apparently, the answer to the previous question on whether or not the founding fathers would have envisioned Federal Agencies as a primary vehicle for legal change is: it wouldn’t really matter. The nature of the executive is impermanence, and that goes for its rulemaking as well. The reclassification of the internet took the Net Neutrality question out of the executive’s hands where it would have fallen victim to the changing tides of presidencies. The debate was then rightfully returned to Congress where it belonged. At least, that’s the outcome that would have made the most sense. But mechanisms for legal change rarely do. Thus, California, not Congress, became the new battleground for Net Neutrality.

The Future of Net Neutrality

In response to the FCC's decision, several states, including California, took steps to enact their own net neutrality regulations. California's net neutrality law, signed in 2018, sought to reinstate the protections eliminated by the FCC's order. However, legal challenges ensued, with the Department of Justice filing a lawsuit against California, arguing that the state was overstepping its authority by attempting to regulate interstate commerce. However, the executive had already undermined themselves, and the US Court of Appeals ruled that the reclassification of the internet meant that the FCC no longer had the ability to uphold or strike down net neutrality laws. But clearly, independent states can only do so much to control what is, in nature, a common interstate service. This bottom up approach for Internet regulations was confusing, and many of the Internet Service Providers who had joined the Department of Justice lawsuit were still taking legal action against the Californian law. It wasn’t until the new Biden Administration withdrew the initial Department of Justice lawsuit that all questions were able to be dropped. 

On October 19th, 2023 the Biden-appointed chairwoman of the FCC, Anna Gomez announced that repealing the Open Internet Order in 2017 was a mistake. The same day, a draft proposal for a new net neutrality rule was voted on and opened to the public, beginning the process of transparent communication and public input necessitated by the APA. A new rule will most likely be passed sometime in January, but we already know the end of this story. The expanded power of the executive to create and enforce rules is being used as a bandaid fix for an increasingly stagnant Congress. The ability of the executive to step in and provide temporary fixes pacifies the American people and undermines their civic duty to petition Congress for real permanent change. Even the Supreme Court, which is meant to be the most permanent and most binding of governmental branches, has fallen victim to the tides of the political climate. So when discussing vehicles and mechanisms for legal change, advocates must be cautious of the false gratification that comes with executive orders and even judicial decisions. Whether or not you support net neutrality, it is clear that Congress needs to be the one to make the final decision. Switching up the White House’ decorations every four years might do no harm, but reclassifying a market every four years makes any attempt to regulate it redundant in the long run.