The Net Neutrality Repeal

On December 14, 2017, the FCC (Federal Communications Commission) voted to repeal rules ensuring the maintenance of Net Neutrality, a set of rules regulating ISPs (Internet Service Providers) that prohibited them from favoring some website or services over others. Previously, they were barred from awarding faster internet speeds to certain content in exchange for payment, blocking access to websites with legal content, and slowing down certain categories of internet traffic. They were also required to make public how they prioritized online traffic when their networks were congested. It was a 3-2 vote split down party lines: FCC chair Ajit Pai along with Michael O’Rielly and Brendan Carr voted for the repeal with Democratic FCC appointees Mignon Clyburn and Jessica Rosenworcel opposing the repeal.    

History

Before 1996, when the internet as we know it today was still in infancy, all internet service providers were classified as Title II Common Carrier, like phone companies under The Communications Act of 1934 originally created for the regulation of phone companies. In a move towards deregulation, a new classification known as Title I – meaning Telecommunications Service – was created, giving internet service providers greater freedom in providing services, but it considered them content providers rather than service providers. Throughout the early 2000s, this unregulated internet was allowed to operate mostly unimpeded; however, the FCC chair during this time, Michael Powell, did see the need for ensuring some protections for consumers and content providers were in place enshrining the values of an “open internet” in 2005. These established what we call net neutrality today in name only, however providing no legal basis for protections. Still, the FCC did sometimes ensure net neutrality through various ruling as in 2008 when it voted 3-2 that Comcast had illegally blocked user access to file sharing service BitTorrent regardless of the amount of usage from consumers though the lack of a legal grounding for such a decision ultimately meant Comcast prevailed in the court system.

Various events led the FCC chairman under the Obama administration, Tom Wheeler, to create more formal Net Neutrality rules for the first time in 2010 with his Open Internet Order on the basis of Section 706 of the Telecommunications Act of 1996. The goal was to walk a fine line between overbearing regulations and a weak framework for legal protections; he wanted to avoid invoking the Title II classifications governing phone companies because they could give the FCC power extremely broad powers over the internet.  

In 2010, Verizon sued the FCC over this order. In 2014, the Supreme Court ruled that there was no legal basis for the Open Internet Order in Section 706 only maintaining the requirement that network prioritization measures during heavy traffic be kept in place. It stated that the other portions of the order could only find a basis in Title II classification of ISPs as common carriers, which Wheeler had hoped to avoid but would now be forced to utilize if net neutrality were to be kept in place.  

In 2015, Tom Wheeler reinstated the old net neutrality rules and reclassified ISPs as Title II common carriers. Hoping to allay fears that this would lead to price controls and other heavy regulations outside of net neutrality, the FCC released statements that it would abstain from applying over 700 of the provisions only recreating the Open Internet Order of the past as the new Open Internet Order of 2015.  A group of United States telecommunications companies collectively sued the FCC over this new order, but because of the FCC’s new basis for net neutrality rules under Title II classification, the Washington D.C. District Court upheld the rules, which had been in place until the recent repeal.           

The Debate

Even as all people support the open internet and net neutrality, there has been fiery debate over the FCC imposing such rules. Just kidding. While some Republican legislators and all Republican commissioners on the FCC oppose net neutrality, its repeal has brought popular backlash. Among the unique (non duplicate) comments submitted during the public comment period opened by the FCC during 2017, 98.5% were in support of the FCC’s continued enforcement of net neutrality as a study by a cable company lobby group found.  There were many in opposition as well; however, enough of these were duplicate comments submitted by automated computer systems that exclusion of duplicates lead to a finding of overwhelming support. Earlier in the year, following an online video and HBO episode of The Tonight Show with John Oliver criticizing the FCC for its current stance, the commission was overwhelmed by the sheer number of comments causing its website to crash – a repeat of 2014.  Likewise, many polls have found Americans bipartisanly support net neutrality. So, why the hate? Well, a few arguments have been advanced by the opposition. Various companies including Comcast, Verizon, and AT&T have all stated that they support the principles of net neutrality but oppose the FCC enforcement of it in favor of Congressional legislation. Such a position would be reasonable, except that it would imply we should wait for such legislation before repealing FCC enforced net neutrality, which did not happen. Some, including the CEO of AT&T, have cited the age of the Communications Act of 1934 as a reason for opposition as well, though no specific problems are noted. In a blog post, the CEO of Comcast stated that repealing Title II classification does not mark the end of net neutrality; however, the FCC is currently the sole enforcer of the rules, and previous court rulings have found its only legal authority for doing so can be found in Title II classification (see “History”). Pai has stated that the FTC (Federal Trade Commission) may take the place of the FCC in net neutrality enforcement; however, the premise of his plan was for all ISPs to include in their terms of service requirements to maintain key tenets of an open internet such as no blocking and paid prioritization of content and then allow the FTC to enact punishments for deceptive practices if the agreements were violated, but there would not be a mechanism to ensure ISPs kept such policies in their terms of service or even implemented them. The FTC also lacks the power to issue blanket bans preventing blockage and prioritization of legal content. Pai & Senator Ron Johnson (WI – R) have stated that prioritization for certain forms of content are needed for important needs such as remote medical device access that needs priority over other content to ensure stable access; they also argue that net neutrality rules hinder investment in internet infrastructure by increasing government intervention. The first claim is false, however. The now repealed rules would not prevent prioritization for certain critical services such as remote medical diagnostics. As an Ars Technica article explains:

Now, the second point. As the graph above individuates, investments in telecommunications actually increased from 2014, the year net neutrality had been previously overruled in a court, in 2015 after net neutrality rules were reinstated. Also supporting dismissal of claims that net neutrality would hinder network investment in discussions between telecommunications companies and their investors, who they are legally barred from deceiving under laws regulating finance. Multiple companies, including Comcast, AT&T, and Charter Communications have explicitly stated there is no effect of Title II on their investment levels and business performance.  The last argument is that FCC rules are “solution[s] in search of a problem” because companies will maintain net neutrality themselves and that free market competition will keep these companies in check for fear of losing customers if they violate their promises to maintain net neutrality. First, if companies are willing to fully comply with net neutrality rules, then it is unclear what the harm from maintaining the rules as a fail-safe would be. After the FCC announced it would be repealing rules, Comcast changed its net neutrality pledge on its website to allow for paid prioritization, the practice of allowing companies to pay money for faster access to customers than other content providers. This would allow it to avoid potential FTC punishments if they decided to pursue such an option in the future, though they deny they will on their Twitter account. Their pledge still maintains it will not slow down other content or block it altogether; the pledge also leaves open the possibility Comcast could favor its own content. In February, Attorney General of New York initiated a lawsuit against Charter/Time Warner (which had recently merged) arguing that data from Charter’s internal documents, Netflix, and Riot, the developer of popular online video game League of Legends, all indicate that the company deliberately avoided improving access quality in line with promised speeds to customers unless Riot and Netflix were willing to pay. After receiving payment, speeds promptly increased. To monitor quality, the FCC had required the company install tests in its modems that would use speed testing sites like speedtest.org to regularly report on the quality of its services to the FCC, but it “put lipstick on a pig” and improved service only for customers that speedtest.org indicated were slower even though the difference in speed only appeared because of customer usage patterns.  Another company Cogent involved in the transit of internet service resolved its issues with Charter/Time Warner using the Open Internet Order of 2015. In 2013, a similar incident occurred. Netflix had created its own service hosting all of its content called Open Connect, and it wanted to directly connect this to internet providers’ networks rather than going through a third party CDN (content delivery network). Netflix traffic on the network was heavily congested with their solution begin using their own Open Connect system, which they pay entirely for the upkeep and support of, in a direction connection with Comcast’s network. Comcast refused to allow this until Comcast paid the company a fee for this access even though it cost . A hosting company named Voxel faced similar difficulties with the company.                

There are many more examples.  The final argument concerns the idea that free market competition should be sufficient to force companies to keep true to net neutrality if they want to keep customers, but analysis of FCC data shows only have of Americans have at least two options for broadband service (25 Mbps download / 3 Mbps upload minimum as defined by the FCC), and even below the broadband classification, 50 million households have only one internet provider available, meaning it would not be possible for most to guide the invisible hand as it were.     

The Future

In the next article of this two part series, the future of net neutrality and ongoing efforts to ensure its return will be detailed.  Stay tuned!

Sources

1. Jon Brodkin, 12-14-2017, “Goodbye, net neutrality—Ajit Pai’s FCC votes to allow blocking and  throttling,” Ars Technica, https://arstechnica.com/tech-policy/2017/12/goodbye-net-neutrality-ajit-pais-fcc-votes-to-allow-blocking-and-throttling/
2. Elise Hu, 9-9-2013, “Net Neutrality In Court: Here’s What You Need To Know,” NPR.org, https://www.npr.org/sections/alltechconsidered/2013/09/09/220685669/net-neutrality-in-court-heres-what-you-need-to-know
3. Jeff Sommer, 3-12-2015, “What Net Neutrality Rules Say,” The New York Times, https://www.nytimes.com/interactive/2015/03/12/technology/net-neutrality-rules-explained.html
4. The Telecommunications Act of 1996: https://transition.fcc.gov/Reports/tcom1996.pdf
5. Jeff Sommer, 5-10-2014, “Defending the Open Internet,” New York Times, https://www.nytimes.com/2014/05/11/business/defending-the-open-internet.html
6. Saul Hansell, 8-2-2008, “F.C.C. Vote Sets Precedent on Unfettered Web Usage,” New York Times, http://www.nytimes.com/2008/08/02/technology/02fcc.html
7. Jon Brodkin, 5-8-2017, “John Oliver tackles net neutrality again, crashes FCC comments site—again,” Ars Technica, https://arstechnica.com/tech-policy/2017/05/john-oliver-tackles-net-neutrality-again-crashes-fcc-comments-site-again/
8. https://www.oyez.org/cases/2001/00-511
9. Harris Wiltshire Grannis Llp, 6-14-2016, “D.C. Circuit Upholds FCC Open Internet Rules,” Lexology, https://www.lexology.com/library/detail.aspx?g=42860218-cd80-41ff-93a2-a06848ed6ca1
10. Jon Brodkin, 8-30-2017, “98.5% of unique net neutrality comments oppose Ajit Pai’s anti-Title II plan,” Ars Technica, https://arstechnica.com/tech-policy/2017/08/isp-funded-study-finds-huge-support-for-keeping-current-net-neutrality-rules/
11. Jon Brodkin, 11-22-2017, “FCC explains why public support for net neutrality won’t stop repeal,” Ars Technica, https://arstechnica.com/tech-policy/2017/11/why-the-fcc-ignored-public-opinion-in-its-push-to-kill-net-neutrality/
12. Jon Brodkin, 4-26-2017, “Comcast and other ISPs celebrate imminent death of net neutrality rules,” Ars Technica, https://arstechnica.com/tech-policy/2017/04/isps-claim-to-love-net-neutrality-while-praising-death-of-net-neutrality-rules/
13. Jon Brodkin, 6-9-2017, “The Internet needs paid fast lanes, anti-net neutrality senator says,” Ars Technica, https://arstechnica.com/tech-policy/2017/06/the-internet-needs-paid-fast-lanes-anti-net-neutrality-senator-says/
14. Jon Brodkin, 3-9-2017, “Net neutrality hurts health care and helps porn, Republican senator claims,” Ars Technica, https://arstechnica.com/tech-policy/2017/03/net-neutrality-hurts-healthcare-and-helps-porn-republican-senator-claims/
15. Jon Brodkin, 5-16-2017, “Title II hasn’t hurt network investment, according to the ISPs themselves,” Ars Technica, https://arstechnica.com/information-technology/2017/05/title-ii-hasnt-hurt-network-investment-according-to-the-isps-themselves/
16. Jackstrop, 4-14-2014, “After Netflix pays Comcast, speeds improve 65%,” Ars Technica, https://arstechnica.com/information-technology/2014/04/after-netflix-pays-comcast-speeds-improve-65/
17. Jon Brodkin, 12-1-2017, “Comcast to customers: Just trust us about changed net neutrality pledges,” Ars Technica, https://arstechnica.com/tech-policy/2017/12/comcast-to-customers-just-trustus-about-changed-net-neutrality-pledges/
18. Darthslack Ars Scholae Palatinae, 4-11-2017, ““Unenforceable”: How voluntary net neutrality lets ISPs call the shots,” Ars Technica, https://arstechnica.com/tech-policy/2017/04/unenforceable-how-voluntary-net-neutrality-lets-isps-call-the-shots/
19. Author, 11-29-1703, “What an Internet Analyst Got Wrong About Net Neutrality,” WIRED, https://www.wired.com/story/what-an-internet-analyst-got-wrong-about-net-neutrality/
20. Charlie Hall, 2-9-2017, “Time Warner Cable sued by New York on behalf of League of Legends, Netflix customers,” Polygon, https://www.polygon.com/2017/2/9/14548880/time-warner-lawsuit-new-york-league-of-legends-netflix
21. Zachary M. Seward, 8-27-2014, “The inside story of how Netflix came to pay Comcast for internet traffic,” Quartz, https://qz.com/256586/the-inside-story-of-how-netflix-came-to-pay-comcast-for-internet-traffic/
22. Michael J. Coren, 12-21-2017, “What will happen now that net neutrality is gone? We asked the experts,” Quartz, https://qz.com/1158328/what-will-happen-now-that-net-neutrality-is-gone-we-asked-the-experts/
23. Sarah Morris, 11-14-2014, “The Most Important Part of the Net Neutrality Debate That You Haven’t Heard About,” Slate Magazine, http://www.slate.com/articles/technology/future_tense/2014/11/interconnection_the_most_important_part_of_the_net_neutrality_debate_you.html
24. Jon Brodkin, 6-30-2017, “50 million US homes have only one 25Mbps Internet provider or none at all,” Ars Technica, https://arstechnica.com/information-technology/2017/06/50-million-us-homes-have-only-one-25mbps-internet-provider-or-none-at-all/