Is Dec. 14, 2017, the day that the hard-fought net neutrality protections die in the U.S.?
First, I suppose it’s useful to review exactly what net neutrality is, and what losing its protections could mean.
On Dec. 14, the FCC will vote on whether to undo the classification of the internet as a utility and remove the FCC from the picture entirely.
A couple of years ago, the FCC reclassified the internet as a utility, which gave the FCC the ability to regulate Internet Service Providers (ISPs) under Title II as Common Carriers. This ensured that the ISPs were required to treat all legal content that was sent through their internet service as equal. It’s like any utility: You pay for a service, and the company you pay provides it. They can’t intentionally make some services (or their own services) better than others based on being paid extra to treat that service in some preferential way. They are paid by you to “deliver” the service, and must treat all services (as long as the service is legal) the same.
The need for this reclassification was straightforward; ISPs had started charging for “fast lanes” on the internet and giving preferential treatment to their own content and certain other content providers. The new rules prevented that.
On Dec. 14, the FCC will vote on whether to undo the classification of the internet as a utility and remove the FCC from the picture entirely. This would move governance to the FTC, whose oversight is significantly different than that of the FCC. The FCC provisions are proactive governance (as in the rules prevent the ISPs from participating in these restrictive and anticompetitive practices); under the FTC, the governance is more reactive if a complaint is filed against an ISP (after the restrictive practices are already in place).
The FCC, under President Trump’s appointee Ajit Pai, is seemingly on a mission to undo the current net neutrality protections put in place by the previous administration’s FCC chairman, Tom Wheeler. The commission is always stacked toward the party in power 3–2, so any vote the chairman pushes is likely to go in the chairman’s direction.
There are several interesting issues to the current situation, including:
- The FCC is required and did collect comments on the proposal to remove the current net neutrality protections. Comments came in and ended up at a staggering 22 million or so. The problem, however, is that factions on both sides of the argument have claimed that most of those comments were posted by bots. When asked to investigate, the claims the FCC has refused. The comment controversy is actually even more complex that this simple explanation, but suffice it to say that there are enough questions that the comments meant to guide the FCC’s decision are not trustworthy, that they need to be vetted.
- Twenty-eight U.S. senators cosigned a letter FCC requesting that the vote be postponed until the comment controversy is answered. The FCC is continuing with the vote as scheduled.
- New York Attorney General Eric Schneiderman sent an open letter to the FCC stating that over a six-month period, the FCC had refused to answer repeated requests from his office for information to support his investigation into the comment controversy. The legal basis of Schneiderman’s investigation is related to the misuse of New York residents’ identities in the bot-posted comments, and without FCC assistance the investigation was stalled.
- Turning over regulation to the FTC is also problematic for reasons beyond the methods that would be employed. The FTC is empowered to pursue companies that are believed to be acting in restraint of free trade, but there is a clear prohibition for common carriers. The FCC classified ISPs as common carriers, but of course the FCC reversal of that classification should make the ISPs fall under the FTC. However, there is currently a little-tracked court case, FTC v. AT&T, in the 9th Circuit Court of Appeals that made a small change in the way that FTC rule is applied. In the past, the common carrier status only applied to the parts of a business that fell under the common carrier classification directly. The original court ruling extended that definition to include all of the company whether they were a common carrier, or were the “parent” of the common carrier. In other words, the FCC is about to remove the common carrier classification to ISPs and turn over supervision to the FTC, but because of this ruling (and assuming the appeals court upholds the original ruling) the FTC is prevented from overseeing those very same companies because they are now classified as common carriers … kind of makes your head hurt, right?
There are several outcomes from tomorrow’s decision, and since it’s likely that the vote will overturn the classification, many are not good. The ISPs will effectively be left to regulate themselves, something that has not gone well for businesses or the public in the past. There will be plenty of lawsuits attempting to put the protections back in place, so this is not over. There also is a call for Congress to step in and pass legislation to put the regulations back in place, but with a Republican-controlled House and Senate, it’s not likely to pass anytime soon. Look for the return of “fast lanes” (and of course “slow lanes”) which will cost many companies, but will also ultimately cost consumers and restrict the free flow of information across the internet.