2 The Obama-era Federal Communications Commission adopted “net neutrality” through its Preserving the Open Internet Order (2011), which the U.S. Circuit Court of Appeals for the District of Columbia vacated in Verizon v. FCC (2014), ruling that the agency did not have legal authority to regulate an “information service” extensively. The court suggested that if the FCC simply redefined broadband as a “telecommunications service,” the FCC would be within its rights to widely regulate it. Subsequently, the FCC did just that, opening a new administrative rulemaking and issuing the Protecting and Promoting the Open Internet Order (2015). This ruling left broadband awkwardly subject to statutory provisions adopted by Congress in 1934 for the purpose of regulating voice telephony. Like its precursor, this order was litigated against by industry. Meanwhile, Donald Trump was elected. His pick for FCC chairman, Ajit Pai, has led the Commission to reverse the 2015 order in the Restoring Internet Freedom Order (2018). It follows an allow-but-disclose model for conduct the Democratic FCC would have prohibited. As of this writing, a handful of states, most notably California, have passed laws that purport to impose net neutrality on broadband providers, although these state actions are likely preempted by federal law.
3 If net neutrality does become official government policy of the United States, then the policy itself should apply neutrally, both to the broadband providers who control the physical infrastructure and to edge providers who control the retail interface of the internet to consumers.
4 An even more extreme version of net neutrality would forbid even these arrangements. California’s net neutrality statute, signed into law in late September 2018, forbids “zero rating,” where broadband providers whose plans include limits on total data do not charge certain content against those data caps.
5 47 U.S.C. § 254(b)(3).