{"id":270500,"date":"2025-01-09T12:00:53","date_gmt":"2025-01-09T17:00:53","guid":{"rendered":"https:\/\/mathewingram.com\/work\/?p=270500"},"modified":"2025-01-09T12:01:02","modified_gmt":"2025-01-09T17:01:02","slug":"net-neutrality-is-dead-again-and-journalism-could-suffer","status":"publish","type":"post","link":"https:\/\/mathewingram.com\/work\/2025\/01\/09\/net-neutrality-is-dead-again-and-journalism-could-suffer\/","title":{"rendered":"Net neutrality is dead again and journalism could suffer"},"content":{"rendered":"\n
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Net neutrality\u2014or the idea that<\/a> all digital information should flow through the internet unencumbered by restrictions and without internet companies showing favoritism toward some types and sources of content over others\u2014sometimes feels like an immutable law of the modern world; like gravity or magnetic attraction. But in reality, it’s a political football that has been tossed back and forth for decades<\/a> between open-internet advocates and free-market conservatives, who feel that neutrality rules are unnecessary and a brake on innovation and growth. Last week, the opponents of net neutrality won a significant victory when judges on the Sixth Circuit Court of Appeals ruled that<\/a> the Federal Communications Commission didn’t have the right to impose such rules<\/a> when it did so last year. Now critics say that the death of the rules could allow the internet to become distorted by partisan political and corporate interests. It could also make existing online even more difficult for news publishers and journalism in general.<\/p>\n\n\n\n

Net neutrality first appeared as a concept in a paper written by Tim Wu\u2014then an associate professor at the University of Virginia; now a Columbia University law professor\u2014in 2003<\/a>, published in the Journal of Telecommunications and High Technology Law<\/em>. In the paper, Wu foresaw that “communications regulators over the next decade will spend increasing time on conflicts between the private interests of broadband providers and the public\u2019s interest in a competitive innovation environment centered on the Internet”\u2014a prediction that was spot on<\/a>. The idea of net neutrality, Wu wrote, is no different than promoting fair competition in any industry, ensuring that \u201cthe short term interests of the owner do not prevent the best products or applications becoming available to end-users\u201d and preserving \u201ca Darwinian competition among every conceivable use of the Internet so that the only the best survive.\u201d<\/p>\n\n\n\n

This idea helped shape FCC rules<\/a>, in 2004, that aimed at what the commission called “preserving internet freedom,” including a user’s right to choose any device they wanted to connect to an internet network, the applications they wanted to run, and the content they wanted to consume. In 2008, the FCC took action against Comcast for throttling the internet speed of cable customers who used a file-sharing system called BitTorrent, which Comcast didn\u2019t like because it sucked up too much bandwidth. (Comcast paid a fine but did not admit any wrongdoing.) In 2014, the FCC issued an Open Internet Order<\/a> that prohibited telecom and broadband companies from blocking their customers’ access to competing services or websites. The following year, the commission officially defined internet service providers (or ISPs) as \u201cTitle II\u201d carriers, similar to phone or other utility providers, giving the agency control over their activities under the Telecommunications Act.<\/p>\n\n\n\n

Note<\/strong>: This was\u00a0originally published as<\/a>\u00a0the daily newsletter for the Columbia Journalism Review, where I was the chief digital writer<\/em><\/p>\n\n\n\n\n\n\n\n

As Pete Vernon explained in CJR<\/a> in 2017, this allowed the FCC to impose strict net neutrality rules on ISPs by classifying them as utilities. But during the first Trump administration, the FCC, now under the leadership of Ajit Pai, quickly moved to roll back this decision, arguing that net neutrality rules were slowing down investment in broadband development and that the “reins needed to be loosened to spur competition.” Criticism from open internet advocates, including groups like the Electronic Frontier Foundation, was swift; Nilay Patel, the editor of The Verge<\/em>, wrote that<\/a> rolling back the Title II decision was a “massive corporate handout that will line the pockets of Comcast and AT&T, while doing nothing for the average American.” Despite the outcry, however, the Trump administration reversed the Title II designation in 2017.<\/p>\n\n\n\n

After Joe Biden was elected president, the political football curved back the other way: in 2021, Biden signed an executive order instructing the FCC to<\/a> reinstate net neutrality rules. But for a variety of reasons, including administrative delays and open hearings on the FCC’s proposal, it took until last year for that to happen; when it did, the decision was quickly appealed to the Sixth Circuit, which led to the decision last week. While the reversal was not unexpected, the method the court used to arrive at its ruling was somewhat unusual, or at least novel: in effect, the judges decided that the FCC didn’t have the authority to reinstate net neutrality rules because it had never<\/em> had the right<\/a> to impose those rules in the first place. In other words, it ruled that the commission’s original reclassification of ISPs as Title II carriers under the Telecommunications Act was improper.<\/p>\n\n\n\n

According to the judges, under the terms of that law, ISPs should be considered a Title I “information service”\u2014a much broader category, and one that is not subject to FCC regulation\u2014rather than a Title II service similar to telephone carriers. In the past, the court might have deferred to the FCC’s expertise in deciding how different services should be classified. Recently, however, the Supreme Court overturned the so-called standard of “Chevron deference,”<\/a> which had previously given agencies broad latitude in how to apply laws. The Sixth Circuit cited the new precedent in its ruling. The judges agreed that the FCC had some expertise in how the internet works, but ruled that this expertise “cannot be used to overwrite the plain meaning of the statute.”<\/p>\n\n\n\n

The verdict<\/a> drew cheers from conservatives; Pai posted on X that<\/a> the concept of net neutrality was a “tired non-issue,” while Marsha Blackburn, a Republican senator from Tennessee, said that it was a “solution in search of a problem,” and called the Appeals Court ruling<\/a> “a win for internet freedom.” And defenders of the open internet predictably reacted with dismay. Wu, the professor who coined the term net neutrality, described the ruling<\/a> as “blatant judicial activism that puts corporate interests over American democracy.” Chuck Schumer, the Senate minority leader, said that the court had given<\/a> “a green light to big internet service providers to gouge consumers.” The Nation<\/em> wrote that by ending net neutrality, “pro-corporate judicial activists have shredded<\/a> the First Amendment of the internet.”<\/p>\n\n\n\n

So, what impact could all of this have on journalism? In 2017, when the FCC said that it was considering overturning net neutrality rules, I wrote for CJR<\/a> that some observers of the industry believed the proposed changes could pose an existential threat. (I wrote that piece as a regular author of this newsletter; I\u2019m writing today in a freelance capacity.) The Center for Internet and Society at Stanford, for instance, released a report arguing that the death of net neutrality could significantly worsen the economic situation<\/a> for publishers; the history of ISPs\u2019 behavior, the center argued, showed that eliminating net neutrality rules would “exacerbate negative trends in local news, and would likely lead to reduced quality, diversity, and choice.” While some of the threat might stem from intentional discrimination on the part of ISPs, the report said, the most serious<\/a> risk was “collateral damage from a regime that favors large, established online players and makes it harder for new entrants to break through.”<\/p>\n\n\n\n

Matt DeRienzo, the executive director of the group Local Independent Online News Publishers, also wrote in 2017 about what the repeal would mean for local journalism<\/a>. Independent sites that had sprung up to fill gaps in the sector rely on “an Internet based on a level playing field for all publishers and readers, regardless of size or resources,” he argued. The end of net neutrality would mean that big Internet and wireless providers could charge individual publishers for differing levels of speed and access, “a scenario in which a handful of big companies with deep pockets could squeeze out” small outlets. This, DeRienzo wrote<\/a>, would “severely limit citizens\u2019 access to information and could be devastating to local news.” Since then, there hasn\u2019t been a lot of clear evidence that these negative effects have occurred. But they could feasibly have been obscured by the general decline in the industry\u2019s overall financial health. Either way, the recent verdict is clearly not good<\/em> news for beleaguered smaller publishers fighting for every competitive advantage they can get. <\/p>\n\n\n\n

One silver lining is that the court\u2019s decision doesn\u2019t affect state laws on net neutrality that are in place in California, Washington State, and Colorado. Meanwhile, Democrats at the FCC\u2014including Jessia Rosenworcel, the outgoing chair of the commission\u2014have called on Congress<\/a> to create legislation that would enshrine net neutrality in law, once and for all. (When Trump returns to office, Rosenworcel is set to be succeeded by Brendan Carr, a conservative with an expansive view of the agency\u2019s remit; Kyle Paoletta recently profiled him for CJR<\/a>.) “Consumers across the country have told us again and again that they want an internet that is fast, open, and fair,\u201d she said. “It is clear that Congress now needs to heed their call, take up the charge for net neutrality and put open internet principles in federal law.” As Evan Greer, director of the nonprofit Fight for the Future, told Wired<\/em> recently<\/a>, “it’s a sad day for democracy when giant corporations can forum-shop for industry-friendly judges to strike down some of the most popular consumer protection rules in history.”<\/p>\n

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Net neutrality\u2014or the idea that all digital information should flow through the internet unencumbered by restrictions and without internet companies showing favoritism toward some types and sources of content over others\u2014sometimes feels like an immutable law of the modern world; like gravity or magnetic attraction. But in reality, it’s a political football that has been … <\/p>\n

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