Before the Tiers

The answer, two decades later, is yes. They can. They do. Nobody stopped them permanently.

That's not entirely fair. Some people tried very hard. The Internet Freedom Preservation Act — introduced in the Senate in May 2006 and co-sponsored by Olympia Snowe, Byron Dorgan, Ron Wyden, Patrick Leahy, Barbara Boxer, Barack Obama, and Hillary Clinton — would have mandated nondiscriminatory broadband operations, required standalone internet options, and given the FCC complaint resolution authority within 90 days. It was, by the standards of 2006 telecommunications legislation, genuinely good law.

It didn't pass. None of them did.

Twenty years on, the Sixth Circuit Court of Appeals struck down the FCC's final attempt to restore net neutrality in January 2025, ruling that after the Supreme Court's 2024 Chevron reversal, the commission lacks the statutory authority to reclassify broadband as a regulated telecommunications service. Without Congressional action — which has not happened in twenty years of trying — there are no federal net neutrality rules.

The people who wrote those 2006 bills were largely right about the problem. They were working in the wrong venue. They didn't know that yet. We do now.

i · what the 2006 legislators actually feared

The specific threat the legislators named was structurally clean: cable and telecom companies would create tiers. A fast lane for content providers who paid premium fees to ISPs. A slow lane for everyone else. Startups competing with an ISP's preferred partners would face invisible disadvantage — their services would buffer, load slowly, fail quality checks — while established players that had already paid for preferential treatment would glide.

This was a documented threat. The FCC's record in the early 2000s contained real cases of broadband providers blocking or degrading competitor services. Madison River Communications blocked VoIP in 2004. Comcast was already studying BitTorrent's impact on its network. AT&T's then-CEO Edward Whitacre explained in interviews that companies "using his pipes" for free were, in his assessment, nuts. He said this publicly. The House Energy and Commerce Committee voted his way that April.

The 2006 bills differed in approach but converged on the diagnosis. The Internet Freedom and Nondiscrimination Act (Sensenbrenner/Conyers) tried antitrust law — amend the Clayton Act to prohibit discriminatory network management, letting the FTC enforce it without needing FCC rulemaking authority. The Internet Freedom Preservation Act took the direct regulatory route: mandate nondiscrimination and give the FCC enforcement teeth. The Stevens/Inouye bill, the telecom industry's preferred vehicle, proposed annual FCC studies and essentially nothing actionable.

When the House Energy and Commerce Committee rejected a net neutrality amendment in April 2006, the vote told you exactly where things stood. Telecom lobbying had already outrun the grassroots internet advocacy that was just starting to organize. Google and Microsoft were funding coalitions. MoveOn.org was running petitions. The committee voted for the pipes.

The bills died. The internet remained technically neutral — not by rule, but by inertia. The carriers were watching their networks and making plans.

ii · the two-tier internet that actually emerged

The tiered internet the 2006 legislators feared didn't materialize in its predicted form. What emerged was more subtle and, in several ways, more difficult to legislate against.

Comcast throttled BitTorrent traffic in 2007–2008 — not by creating a paid fast lane but by actively degrading a specific protocol that competed, indirectly, with Comcast's television business. The FCC tried to stop it and lost in court in 2010: without explicit statutory authority, the agency couldn't regulate broadband under "ancillary authority." This was the first ruling in what would become a twenty-year legal attrition campaign against every net neutrality framework not anchored in Congressional legislation.

Netflix paid Comcast for direct interconnection in 2014. Not technically a fast lane in the legislative sense — not a formal tier — but economically equivalent. Netflix's streaming quality had degraded over months as traffic crossed into Comcast's network; Comcast's own on-demand service had no such problem. Netflix paid. Quality improved.

Zero-rating became the actual implementation of the tiered model: AT&T didn't count DirecTV (which it owned) against mobile data caps. T-Mobile's Binge On exempted certain streaming services. This was formal price discrimination dressed as a consumer benefit — and it was nearly perfectly designed to evade net neutrality rules, because the content appeared free to the user even though the ISP was extracting value from the arrangement.

The 2006 legislators predicted a visible, formal two-tier internet. What materialized was an informal constellation of interconnection agreements, vertical integration advantages, data cap carve-outs, and peering disputes that add up to the same structural problem in a form harder to prohibit. The diagnosis was right. The specific mechanism was wrong enough to survive regulation for twenty years.

iii · the rulemaking trap

The actual win came in 2015. Tom Wheeler's FCC reclassified broadband as a Title II telecommunications service, finally giving the commission the statutory authority it needed to enforce real net neutrality rules. Courts upheld the order in 2016. This was the first moment since the 2006 bills that the legal framework matched the policy goal.

It lasted two years.

Ajit Pai's FCC reversed the reclassification in 2017. Biden's FCC, under Jessica Rosenworcel, reclassified broadband again in 2024. The Sixth Circuit struck it down in January 2025.

The lesson embedded in this cycle is something the 2006 legislators were circling without fully naming: FCC rulemaking is structurally fragile. The FCC is a five-member commission appointed by the president. A single election changes its composition. Rulemaking happens through administrative procedures that courts can invalidate if the underlying statutory authority is ambiguous. Chevron deference — the legal principle that courts defer to agencies' reasonable interpretations of ambiguous statutes — was doing the structural work that let the Wheeler FCC's 2015 order survive its first court challenge. The Supreme Court's 2024 Loper Bright Enterprises v. Raimondo decision overruled Chevron. Courts no longer defer. The Sixth Circuit read the Communications Act fresh, found the FCC's classification authority insufficiently grounded in the statute, and voided the rules.

The trap is now closed. Net neutrality rules can be written at the FCC, upheld briefly, reversed, rewritten, and struck down again — and the only exit requires Congressional legislation that has failed for twenty years. The FCC was always the structurally wrong venue. It took a generation of legal attrition to fully demonstrate it.

iv · the bill that never came

What the 2006 bills had right — and what remains the only durable solution — is the underlying architecture: explicit statutory nondiscrimination requirements, written into law by Congress, not dependent on FCC interpretation or Chevron's survival. That approach was available in 2006. It's still available. Congress has simply not taken it.

Net neutrality polls consistently above 80 percent public support across party lines. The Save the Internet Act passed the House in 2019. It was never brought to a Senate floor vote. Every serious push for Congressional action has encountered the same structure: broad public agreement, a carrier lobbying apparatus that has run continuously for two decades, and a Senate that doesn't move on telecommunications policy unless the industry consents.

The carriers figured this out around 2007. They stopped fighting net neutrality in committee and started letting it win at the FCC, then litigating it to death in court, then letting it win again. Each cycle extracted a few more years. Each loss in court established new precedent limiting the next rulemaking attempt. The January 2025 ruling is the cleanest version of the outcome they were building toward: rules gone, FCC authority gone, no Congressional intervention in sight.

The people who wrote those six bills in 2006 were not naive. They saw the threat accurately, worked through the appropriate channels, assembled a genuine coalition, and produced legislation that described the right solution. They were wrong about the venue, in a way that could not have been obvious then. The rulemaking trap was a future condition, not yet fully assembled. It finished assembling in January 2025.

The tiers are here. They're not called that. They work the same way.

v · sources

• Net Neutrality Bills in Congress — Phys.org, 2006-05-16
• Internet Freedom Preservation Act, S. 2917 (109th Congress) — Congress.gov
• Comcast Corp. v. FCC, 600 F.3d 642 (D.C. Cir. 2010) — CourtListener
• Netflix will pay Comcast for direct access to its network — The Verge, 2014-02-23
• FCC votes to restore net neutrality — The Verge, 2024-04-25
• Court kills FCC net neutrality rules after Chevron reversal — Ars Technica, 2025-01-02