Net neutrality in the United States
In the United States, net neutrality—the principle that Internet service providers should make no distinctions between different kinds of content on the Internet, and to not discriminate based on such distinctions—has been an issue of contention between end-users and ISPs since the 1990s. With net neutrality, ISPs may not intentionally block, slow down, or charge different rates for specific online content. Without net neutrality, ISPs may prioritize certain types of traffic, meter others, or potentially block specific types of content, while charging consumers different rates for that content.
A core issue to net neutrality is how ISPs should be classified under the Communications Act of 1934 as amended by the Telecommunications Act of 1996: as either Title I "information services" or Title II "common carrier services". The classification determines the Federal Communications Commission's authority over ISPs: the FCC would have significant ability to regulate ISPs if classified under Title II, but would have little control over them if classified under Title I. Because the Communications Act has not been amended by Congress to account for ISPs, the FCC had taken the authority to designate how ISPs are classified, as affirmed by the Supreme Court in the case National Cable & Telecommunications Ass'n v. Brand X Internet Services, which relied on the judicial principle of the Chevron deference, where the court deferred to administration agencies' interpretation of Congressional mandates.
The five member FCC commission changes with each new administration, and no more than three members may be of the same political party, thus the FCC's attitudes and rule-making regarding net neutrality shifted relatively frequently through the 2020s. Generally, under Democratic administrations, the FCC has favored net neutrality, while the agency under Republican leadership eschew the concept.
The Supreme Court case Loper Bright Enterprises v. Raimondo overturned the Chevron deference, and as a result, the Sixth Circuit ruled in 2025 that the FCC does not have the authority to classify ISPs as Title II services, further ruling that ISPs are Title I information services based on the 1996 amendment. This means net neutrality is no longer mandated at the federal level, and the legality of whether ISPs may act based on differences in Internet traffic is left to the states. Some states, such as California, have implemented their own versions of net neutrality since this decision.
Regulatory history
Early history (1980 – early 2000s)
The ideas underlying net neutrality have a long pedigree in telecommunications practice and regulation. Services such as telegrams and the phone network have been considered common carriers under U.S. law since the Mann–Elkins Act of 1910, which means that they have been akin to public utilities and expressly forbidden to give preferential treatment. The Communications Act of 1934 created the Federal Communications Commission to regulate the industry and ensure fair pricing and access. Different titles of the Act covered different modes of communication, but primary focus on the debate of net neutrality has been on Titles I and II. The Act distinguished between common carriers, who were bound under Title II of the Act, and other telecommunication systems of the time, covered broadly under Title I. Within Title II, common carriers such as the phone networks were to be regulated by the FCC as to assure reasonable pricing rates and non-discriminatory practices. Systems under Title I were left to be unregulated by the FCC.In the late 1980s the Internet became legally available for commercial use, and in the early years of public use of the Internet, this was its main use – public access was limited and largely reached through dial-up modems. The Internet was viewed more as a commercial service than a domestic and societal system. However, by the late 1990s and early 2000s, the Internet started to become common in households and wider society. Also in the 1980s, arguments about the public interest requirements of the telecommunications industry in the U.S. arose; whether companies involved in broadcasting were best viewed as community trustees, with obligations to society and consumers, or mere market participants with obligations only to their shareholders. The legal debate about net neutrality regulations of the 2000s echoes this debate.
By the 1990s, some U.S. politicians began to express concern over protecting the Internet:
The Communications Act of 1934 was amended with the Telecommunications Act of 1996, which besides other provisions, defined "information services" as "the offering of a capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications", and covered only under Title I unregulated by the FCC.
In the early 2000s, legal scholars such as Tim Wu and Lawrence Lessig raised the issue of neutrality in a series of academic papers addressing regulatory frameworks for packet networks. Wu is credited with introducing the term "network neutrality" in his 2003 paper "Network Neutrality, Broadband Discrimination". Wu had found based on behaviors of broadband providers in the early 2000s that there could be potential for commercial interests to interfere with natural evolution of new innovations on the Internet, such as those using higher bandwidth like voice and video applications. Wu outlined the benefits and drawbacks of governmental regulation for net neutrality, writing "Communications regulators over the next decade will spend increasing time on conflicts between the private interests of broadband providers and the public’s interest in a competitive innovation environment centered on the Internet."
Papers from Wu and others in the early 2000s sparked debate among academics in information technology and legal areas to device possible frameworks for net neutrality that could be applied within U.S. laws; these discussions paralleled similar concurrent ones in Europe, though due to its different governmental structure, took on different forms of implementation. Within the U.S., media and politicians learned of these regulatory suggestions, leading to the start of net neutrality principles within the government.
Attempts at regulation under Title I information services (2000–2015)
''Brand X'' and FCC's authority to classify services (2000–2005)
In the wake of the Telecommunications Act of 1996, the introduction of "information services" under Title I prompted many cable-based Internet access providers to urge the FCC to classify their services as Title I information services, rather than as cable providers under the Act's Title III which required them to provide open access to other service provides. The FCC took in comments, and after providing its initial findings in 2002, issued "Inquiry Concerning High-Speed Access to the Internet over Cable and Other Facilities" in which it had determined that cable ISPs were neither a telecommunications provider nor a cable provider but were solely an information service that fell under Title I and thus could operate unregulated by the FCC.Several non-cable ISPs and other industry groups sued the FCC, challenging this ruling in multiple courts. The cases were consolidated to the Ninth Circuit. In May 2003, the Ninth Circuit vacated the FCC's ruling, stating that cable ISPs had a telecommunications function and thus should be regulated under Title II. The National Cable & Telecommunications Association challenged the ruling, and while the Ninth Circuit refused to rehear the case en banc, the Supreme Court agreed to hear the case. The Court announced its judgment in June 2005. The 6–3 decision reversed the Ninth Circuit's ruling, deeming that the FCC had properly defined cable ISPs as an information service. The majority opinion relied on the Chevron deference, a principle that the judicial body gives deference to an executive agency's interpretation of legislation outlining its granted powers as long as that interpretation is reasonable and consistent. While the ruling was unfavorable for proponents of net neutrality, Brand X established that the FCC had powers to classify Internet services subject to their interpretation, which has played a key role in how net neutrality has since played out in the United States with changing administrations.
The majority opinion in Brand X was authored by Justice Clarence Thomas, who has subsequently stated that he regrets the decision, in his dissent to Baldwin v. United States.
FCC promotes freedom without regulation (2004)
In February 2004, then Federal Communications Commission Chairman Michael Powell announced a set of non-discrimination principles, which he called the principles of "Preserving Network Freedom", based on studies from Tim Wu and Phil Weiser and other academics from the previous years. Powell recognized that it was still early to have a clear picture of what government regulation should be for net neutrality, but agreed that based on practices of broadband operators of the past few years, it was necessary to establish what rights consumers should expect from broadband service. In a speech at the Silicon Flatirons Symposium, Powell encouraged ISPs to offer users these four freedoms:- Freedom to access content – Consumers should have access to their choice of legal content
- Freedom to run applications – Consumers should be able to run applications of their choice
- Freedom to attach devices – Consumers should be permitted to attach any devices they choose to the connection in their homes
- Freedom to obtain service plan information – Consumers should receive meaningful information regarding their service plans