Net neutrality has been a partisan football for more than two decades, or ever since high-speed broadband connections began to supplant dial-up modems.

In legal terms, the battle has been over the classification of broadband under the Communications Act of 1934 — as Title I "information services" or Title II "telecommunications." The FCC has no jurisdiction over Title I services, but great authority over those classified by Title II as common carriers.

The key inflection point came in 2002, when a GOP-majority FCC under George W. Bush classified cable internet services as Title I. In effect, the commission stripped itself of its authority to regulate the nascent industry. (Then-FCC Chair Michael Powell subsequently became the chief Washington lobbyist for the cable industry, big surprise.)

Not until 2015 was the error rectified, at the urging of President Obama. Broadband was reclassified under Title II; then-FCC Chair Tom Wheeler was explicit about using the restored authority to enforce network neutrality.

But that regulatory regime lasted only until 2017, when a reconstituted FCC, chaired by a former Verizon executive Ajit Pai, reclassified broadband again as Title I in deference to President Trump's deregulatory campaign. The big ISPs would have geared up to take advantage of the new regime, had not California and other states stepped into the void by enacting their own net neutrality laws.

A federal appeals court upheld California's law, the most far-reaching of the state statutes, in 2022. And although the FCC's action could theoretically preempt the state law, "what the FCC is doing is perfectly in line with what California did," says Craig Aaron, co-CEO of the consumer advocacy organization Free Press.

The key distinction, Aaron told me, is that the FCC's initiative goes well beyond the issue of net neutrality — it establishes a single federal standard for broadband and reclaims its authority over the technology more generally, in ways that "safeguard national security, advance public safety, protect consumers and facilitate broadband deployment," in the commission's own words.

Although Verizon's actions in the 2018 wildfire case did not violate the net neutrality principle, for instance, the FCC's restored regulatory authority might have enabled it to set forth rules governing the provision of services when public safety is at stake that might have prevented Verizon from throttling the Santa Clara Fire Department's connection in the first place.

Until Thursday, the state laws functioned as bulwarks against net neutrality abuses by ISPs. "California helped discourage companies from trying things," Aaron says. Indeed, provisions of the California law are explicit enough that state regulators haven't had to bring a single enforcement case. "It's been mostly prophylactic," he says — "telling the industry what it can and can't do. But it's important to have set down the rules of the road."

None of this means that the partisan battle over broadband regulation is over. Both Republican FCC commissioners voted against the initiative Thursday. A recrudescence of Trumpism after the November election could bring a deregulation-minded GOP majority back into power at the FCC.

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