The End of Net Neutrality

Peter Van Doren

The US Court of Appeals for the Sixth Circuit last week decided that the Federal Communications Commission (FCC) lacked the legal authority to issue so-called ” net neutrality” rules.

While net neutrality sounds appealing, the actual internet experience that we have come to expect requires non-neutrality. In the early days of the internet, packets of information were basically treated alike. This was when the internet was a government-funded communications system that allowed university researchers to communicate with each other.

When the internet started to allow private internet service providers (ISPs) to connect to the government system in the 1990s, the structure of the internet became more complex. Private “backbones” supplemented the original government network, connecting through four network access points. The four access points immediately became congested with traffic, which gave the backbone operators market power over the local ISP providers. To reduce congestion and limit backbone market power, ISPs quickly developed new pathways and connections.

Thus, since the early days of the private internet there have been multiple paths for packets of information to travel. Similar packets have traveled over different pathways at different speeds and have paid differing amounts to do so. These arrangements were not anti-consumer or anti-competitive. They were simply what was required to create redundancy and overcome market power.

Despite this underlying engineering reality, “net neutrality” became a partisan issue. Democrats were in favor and Republicans opposed. And 30 years of legal maneuvering ensued. The Biden administration continued this game of regulatory ping pong by reinstating net neutrality rules in April 2024 that were repealed during the first Trump administration. The court decision blocks the reinstatement.

Net neutrality has captured the imagination of Democratic activists and the public, but its effects on the actual technical and legal evolution of the internet have been rhetorical rather than real. Repeal of the net neutrality rules will not be the death of the internet. It will simply return us to the hands-off regulatory framework that has nurtured the last three decades of the internet revolution.