Net neutrality is the principle that Internet service providers should give equal treatment to all the data that passes through their cell towers and cables. For this reason, they should not be able to pass some content through “fast lanes”, while discriminating against other content or blocking it altogether. In other words, Internet service providers should not be able to slow down video-streaming services like Netflix, or disable access to services such as Skype, for the purpose of pressuring you to use an alternative content-streaming service or maintain your current cable package.
The Federal Communications Commission (FCC) in the US had, for many years, during the Bush and Obama eras included, attempted to implement the protections espoused by net neutrality. After losing a number of court battles to Internet service providers, the FCC finally managed to pass a far-reaching net neutrality order in2015. However, in December 2017, the FCC, under the control of Republicans, voted to discard the net neutrality order. This in effect gave Internet service providers the green light to throttle or even block content as they please.
For a long time, advocates of net neutrality have contended that maintaining non-discrimination of online data is essential for innovation. Upcoming technologies and online companies may never have the opportunity to flourish if Internet service providers are allowed to play favorites with online businesses. For instance, YouTube and Netflix might not exist today had Internet service providers seriously limited or even blocked content-streaming services in the mid-2000s. Other net neutrality advocates point out the significant role it plays for free expression. Only a few telecommunication companies control the broadband market, meaning that they have in their hand immense power to snuff out certain views or offer an online platform only to those that can afford their prices.
Leading Internet service providers promised the public that they would not throttle or block any content following the FCC ruling, and the commission’s argument was that traditional antitrust legislation will stop Internet service providers from engaging in practices that give them an unfair advantage over their competition. Net neutrality advocates are, however, not convinced. They are worried that fast lanes will soon start showing up on the Internet. An Internet service provider might, for instance, offer priority treatment on their networks to companies that can pay for it. The fear, then, is that organizations and companies that are unable to afford the special treatment or are simply denied access to it will be pushed out of the market over time.
Net Neutrality: The History
In 2003, law professor Tim Wu published a paper about online discrimination in which he came up with the term “network neutrality.” At the time, Internet service providers such as AT&T did not allow users to use Wi-Fi routers, while Comcast and other broadband providers banned home users of their network from using virtual private networks (VPNs). Wu called for rules to ensure anti-discrimination because he was worried, and rightfully so, that Internet service providers were demonstrating a tendency toward severely limiting innovation of new technologies in the long term.
In 2005, under the Bush administration, the FCC made the first attempt to pass a policy statement for online anti-discrimination rules. The rules were aimed at stopping broadband providers from restricting legal content and blocking their customers from connecting to the Internet through devices of their choice. Under this policy, Comcast was ordered by the commission in 2008 to slow down the connections users made through the peer-to-peer (P2P) file-sharing software BitTorrent. Although many Comcast customers used the software for digital piracy, just as many used it for legitimate purposes. Comcast filed a lawsuit against the commission, claiming that it had overstepped its mandate. The federal court made a ruling favoring Comcast, citing that the commission did not make a sufficiently strong case that it was within its authority to implement the 2005 policy statement.
In 2010, now under the Obama administration, the FCC passed a new net neutrality order that was more detailed to ensure that it could stand the legal test. However, the agency was once again sued, and this time it was Verizon that filed the lawsuit. In 2014, the federal court again ruled that the FCC did not have the authority to enforce the net neutrality policy on Internet service providers that were not categorized as common carriers under the Communications Act Title II, such as was the case with telephone carriers.
A few months later, the FCC put forward a fresh proposal which did not sit well with net neutrality advocates because they were worried the policy would pave the way for “fast lanes” on the Internet. Comedian John Oliver was especially upset by the idea, and he encouraged Last Week Tonight show viewers to file comments showing their support for net neutrality. The FCC website thereafter crashed following a flood of comments. In the end, the commission received just over 21 million comments about the matter, exceeding the record previously held by Janet Jackson following her “wardrobe malfunction” at the 2004 Super Bowl.
The then-chairman of the FCC Tom Wheeler shifted the strategy and chose to reclassify Internet service providers as Title II carriers, albeit with fewer restrictions than operators of telephone landlines. In 2015, the FCC passed another far-reaching net neutrality order and, as had come to be expected, telecommunications companies sued the commission again. This time, however, the same federal court which had previously ruled in favor of telecommunication companies now sided with the FCC and proposed that the rules under the policy were legal. Broadband providers appealed the ruling to the Supreme Court, which has to date not heard the case.
In the meantime, the 2016 election brought with it changes to those controlling the FCC. Republican FCC commissioner Ajit Pai was appointed by Trump as the new chair of the agency. A few months later, in April, Pai announced his intention of reversing the net neutrality order put in place in 2015. Once again, the agency’s website was flooded with comments. However, this time observers realized that the vast majority of the comments on the website, many of which were against net neutrality, was filed by bots and not people.
December 2017 saw the abolition of the of the 2015 net neutrality order following an FCC vote. The new rules by the agency discarded the common-carrier status for Internet service providers, along with all restrictions on throttling and blocking of online content. The restrictions were instead replaced by new rules that only required broadband providers to disclose all information about practices pertaining to the management of their networks. Consequently, the onus is now upon the Federal Trade Commission (FTC) to ensure that consumers are protected from alleged violations of net neutrality. It is, however, important to note that the FTC has no authority to create rules as it is merely an enforcement agency. The implication of that is the fact that that agency cannot do anything about net neutrality violations unless they are outlawed by the current laws on existing fair competition. While blocking a competitor may be a violation of antitrust laws, creating fast lanes for companies and organizations that can afford it is not covered by antitrust.
Net Neutrality: The Future
The courts and Congress now have the future of net neutrality in their hands. Along with a group of consumer-advocacy groups, New York state attorney Eric Schneiderman led 21 state attorneys in suing the FCC in January, with the aim of blocking the new rules. An industry group representing Google, Facebook, video-streaming companies, and other Internet firms has also vowed to do their part in the legal fights to ensure net neutrality is maintained.
According to legal experts, advocates of net neutrality might have a fighting chance. Federal agencies are prohibited by federal law from passing “capricious or arbitrary” regulations, partly to put an end to the back and forth shift of rules every time the White House is under a new administration. Nonetheless, agencies are not prohibited from changing their mind, so only time will tell in which direction the courts will rule.
In the meantime, two proposals regarding net neutrality are under consideration in Congress. The first, a Democrat-backed proposal, would reverse the 2017 decision by the FCC and revert back to the 2015 rules. The second one, proposed by R-Tennessee Representative Marsha Blackburn, would ban Internet service providers from blocking legal content, but would place no explicit ban on Internet fast lanes. That means that it does not fully support net neutrality. Furthermore, it would hamper the authority of the FCC and the states to regulate broadband providers in the future, which makes it more difficult to implement strong net neutrality policies.
Meanwhile, there is little doubt that Internet service providers will gradually but surely take advantage of their new-found freedom. It’s not likely that they will not take obvious large steps to block or throttle competing services, especially not while the FCC’s most recent decision is still under scrutiny in the courts. However, you will probably see more of the current practices common with carriers, such as allowing their own content to exceed set data limits. For instance, AT&T already allows users to view its DirectTV Now video-streaming service without having it billed against their data plan, whereas viewing Hulu or Netflix plows through your limit.