Over Easy: Net Neutrality — The Fight Isn’t Over Yet
On February 26 the Federal Communications Commission (FCC) voted to reclassify broadband internet access as a “Title II” telecommunications service, which allows the FCC to impose specific open internet rules that prohibit activities like paid prioritization and blocking.
There are legitimate concerns about the rules, although not necessarily the ones that we are likely to hear about. This is just one battle, and the war is far from over. We have reason to remain quite vigilant in efforts to protect a free and open internet.
The devil is in the details.
The FCC finally published the full net neutrality rules on its Open Internet website, after foot dragging by the two dissenting commissioners caused a delay. The full document is more than 400 pages, including lengthy dissents from Ajit Pai and Michael O’Rielly. Now the next chapter in the story begins. Internet providers will go over the details in the ruling, looking for legal weak points they can take to court.
From the Open Internet website, here are the “Bright Line Rules” in the order.
Bright Line Rules:
- No Blocking: broadband providers may not block access to legal content, applications, services, or non-harmful devices.
- No Throttling: broadband providers may not impair or degrade lawful Internet traffic on the basis of content, applications, services, or non-harmful devices.
- No Paid Prioritization: broadband providers may not favor some lawful Internet traffic over other lawful traffic in exchange for consideration of any kind—in other words, no “fast lanes.” This rule also bans ISPs from prioritizing content and services of their affiliates.
The EFF has warned about a vague “general conduct” rule that allows the FCC to reserve the right to examine practices of ISPs to see if they’re “harmful to consumers.” The Open Internet rules establish a legal standard for other broadband provider practices to ensure that they do not unreasonably interfere with or disadvantage consumers’ access to the Internet. That sounds good in theory, but the rule is so vague that it could subject perfectly reasonable practices to long, drawn out legal fights with the FCC.
Also unclear is exactly how the fight will play out over “interconnection” — which is not directly a “net neutrality” issue, but rather concerns how big ISPs accept traffic from service providers. The big broadband providers deliberately allowed those interconnection points to clog up in order to pressure service providers like Netflix to pay up. The legal framework positions the Commission for the first time to be able to address issues that may arise in the exchange of traffic between mass-market broadband providers and other networks and services. The new rules are likely to try to address this issue, but it’s not entirely clear how.
Another concern is how the rule deals with “zero rating” plans, in which broadband providers let some traffic not count against a data cap. The broadband providers claim that this is a consumer benefit, ignoring that they themselves implemented a data cap. Exempting users from their own anti-consumer practices isn’t really consumer friendly. Bottom line: the new rules will deal with these situations on a “case by case” basis, which can be problematic.
Should we be worried? Those against net neutrality are complaining about tariffs and rate regulations that aren’t happening, but this could tie up perfectly reasonable practices in uncertainty. The rules got a lot right, but we should be concerned about possible problems with them, and be watchful about how they’re interpreted.
Someone is going to sue about the new rules. Last time around, Verizon sued, and either it will sue again or Comcast or AT&T or a combination will sue this time. This will cause uncertainty about whether the rules will stick. If the courts throw out these rules, then we’re back to the beginning.
Some opponents claim that because the FCC lost lawsuits in the past, it will lose again — but this time is different. The court rejected the last rules because it said the FCC was trying to introduce “common carrier” rules without classifying broadband as a common carrier. This order does that. If a lawsuit goes to the Supreme Court, its earlier rulings suggest that it gives the FCC latitude in classifying broadband. Antonin Scalia dissented in an earlier case that broadband was obviously a Title II common carrier service.
Republicans in Congress have started moving to delay the implementation of the new rules. And Congress is gearing up to modify the Telecommunications Act to implement a different set of “net neutrality” rules that instead are only a smokescreen to strip the FCC of authority to protect consumers against current questionable practices of the broadband providers. It’s entirely possible that we’ll be back for another round in a few years. We’ll just have to wait and see.