The ‘pro net neutrality but against Title II regulations’ argument had merit a decade ago, but developments since then make coming FCC rules repeal a mistake
Long time readers of Techdirt may know (as I've noted several times), that in the mid-2000s when the net neutrality debate …
Context & Ripple Effects
This piece lands four days before the FCC's December 14 vote, closing out a year-long fight that began when the agency published the full text of Ajit Pai's proposal to roll back Title II rules ahead of the May 18 vote. Techdirt's position is a rebuttal from inside the pro-net-neutrality camp: it concedes the mid-2000s anti-regulation argument was reasonable at the time but says broadband-market developments since then invalidated it.
It also pushes back directly on the strongest intellectual case for repeal — Stratechery's opportunity-cost argument that regulation carries hidden costs and inter-ISP competition deserves the attention instead. What happened next sharpened the stakes: the FCC's own CTO privately warned commissioners about repeal consequences, nine ISPs declined to make firm no-blocking or no-throttling pledges, and seven years later the commission voted 3-2 to reinstate the rules.
First-order effects
- If the repeal goes through as planned, ISPs like the nine surveyed by The Verge operate with no binding commitment not to block, throttle, or prioritize traffic — their voluntary pledges are the only consumer protection left.
- Repeal hands net neutrality supporters a court fight they entered with strong legal arguments, turning the FCC's rulemaking into the first stage of a litigation cycle rather than a settled policy.
Second-order effects
- Internal dissent from an FCC CTO appointed by Pai himself signals the agency's own technical staff saw consequences leadership downplayed — a credibility cost that strengthens opponents' litigation and public campaigns.
- With no federal floor, the battleground shifts to state-level rules and individual ISP conduct, forcing large providers to defend paid-prioritization and zero-rating practices market by market instead of under one national framework.
Third-order effects
- The 2024 reinstatement vote confirms the pattern this article warned about: without durable statutory grounding, US net neutrality policy oscillates with each change of FCC leadership, imposing repeated compliance whiplash on ISPs and uncertainty on edge services.
- The episode shows the 'regulation vs. competition' framing aging poorly — where inter-ISP competition failed to materialize as a substitute, the access layer reverts to being regulated as a utility whenever one party controls the commission.
The trend: US net neutrality has become a pendulum policy that swings with FCC composition — repealed under Pai in 2017, reinstated in 2024 — because neither side has locked its preferred regime into statute.