Déjà Vu all over again? The Return of Network Neutrality

In 2002, under Chairman Michael Powell, the FCC passed the Cable Modem Order which classified cable modem internet service providers (ISPs) as not subject to common carrier non-discrimination requirements. The order’s critics said the FCC had created a non-neutral internet where dominant firms could use their market power to harm consumers and diminish competition. After several attempts, which the D.C. Circuit rejected, the FCC under Chairman Wheeler imposed network neutrality requirements on ISPs in the Protecting and Promoting the Open Internet order in 2015. Then, the FCC under Chairman Pai largely revoked the network neutrality rules in the Restoring Internet Freedom order in 2017. Now, under Chair Rosenworcel the FCC has just reimposed network neutrality. This panel discussed the legal future on appeal of this most recent iteration in what appears to be an unending partisan regulatory saga—especially in light of the Supreme Court’s changing views on administrative review. The panel also investigated whether this over two decade old policy dispute is fighting yesterday’s war as many believe that there have been few competitive abuses by ISPs during the last two decades—and arguably competitive abuses by dominant firms has moved elsewhere in the web.