This opinion piece will explore the future of net neutrality laws as the United States transitions into a new presidential administration.
Net Neutrality Legislation 2021 (What Is the Current Legislation?)
The two things no internet service provider should ever be able to do is decide which websites and online services should get priority access and what type of data should be blocked. And these principles are pretty much at the heart of the battle that is currently being waged for net neutrality. All internet traffic should get the same treatment as long as it is legal and beneficial.
Big broadband internet service providers (ISPs) like Verizon and Comcast aren’t too interested in ensuring net neutrality’s future. Apparently, not treating every piece of information that flows through their cell towers and cables earns them some extra cash. That extra cash would surely go away if they ever decided to support net neutrality rather than go against it with some help from fierce lobbying activities.
Net neutrality also means that ISPs should not block any legal internet traffic, nor should they discriminate between different types of traffic.
More specifically, big internet service providers and others should not block people from accessing services that they like, such as Netflix, Skype or Amazon Prime Video. They shouldn’t intentionally slow down access to an app, service or website just because the app/service/website didn’t pay up. Companies should also not engage in manipulating any user’s internet experience by enhancing or diminishing the speed with which they access a given service to force them to move to another rival streaming service or change/keep their cable package.
In this regard, both Barack Obama and George Bush administrations supported, developed and enforced protections for net neutrality through the Federal Communications Commission (or FCC). In 2015, after several years of work, the FCC finally managed to pass a net neutrality order which offered sweeping protections against broadband providers abusing their market power to the detriment of the end-user.
The FCC then decided to get rid of the same order in 2017 when Republicans controlled it. That partially meant that the legal defeats the FCC suffered against broadband providers in the years beforehand ended up not doing much in the way of net neutrality.
From December 2017 onwards, broadband service providers in the United States essentially had a free rein on which internet traffic and content to block, which to throttle and which to speed up according to their own needs and goals. The only thing broadband internet access service providers and the FCC had to worry about now was the court and the Congress, as long as they didn’t push the wrong buttons.
The FCC, via the Restoring Internet Freedom Order which became effective on June 11, 2018, got rid of various net neutrality requirements that internet service providers had to fulfill to legally do business. All the debate that currently surrounds topics such as net neutrality is fundamentally about the FCC regulating internet service providers and its specifics. There is no doubt about the fact that the federal government also has a responsibility to make sure telecommunication companies are following proper network management practices.
Note:Current legislation gives the Federal Trade Commission jurisdiction over broadband internet access service providers and the network management practices they have to follow. Not only that, current legislation allows the FTC to preempt states if they try to enact their own internet service provider network restrictions.
After net neutrality was repealed, the attorneys general belonging to 20-plus states, along with internet groups and non-profit organizations, sued the FCC for its Restoring Internet Freedom Order. They argued that the action the FCC took was not only inconsistent but also arbitrary. Moreover importantly, it violated the terms and conditions of the Administrative Procedure Act.
In 2019, the U.S. Court of Appeals for the District of Columbia upheld the ruling dictated by the 2018 FCC order. The court did make two exceptions, though. It was mentioned in the ruling that the Federal Communications Commission did not show any legal authority to go ahead with its Preemption Directive. The court also remanded the order on three other issues.
First, it mentioned that the FCC order did not successfully examine the implications of the decisions that it made from a public safety standpoint. Moreover, it mentioned that the FCC order did not properly explain what the reclassification would mean for pole attachment regulation. And finally, it said that the FCC did not make an attempt to address petitioners’ concerns regarding the reclassification of broadband ISPs on the LifeLine Program.
A total of seven states (Washington, Puerto Rico, Vermont, Oregon, New Jersey, Maine, Colorado and California) ratified legislation regarding net neutrality. California, in particular, signed an agreement with the U.S. Department of Justice of not imposing the state’s own net neutrality laws until the conclusion of the lawsuit brought against the FCC for repealing net neutrality regulations.
Apart from the above-mentioned states, a total of 12 states put forward new rules on net neutrality protections in last year’s legislative sessions. Legislators have also put into effect measures restricting broadband ISPs from abusing customer information and not following proper privacy protocols.
To take an example, both Minnesota and Nevada have prohibited internet service providers to disclose information that can personally identify a given customer. With that said, though, broadband internet providers in Minnesota can disclose subscriber information (such as their viewing habits along with the recent websites that they have visited) if they get permission from the subscriber first.
Why Is Net Neutrality Important (For Everyone, Including Internet Service Providers)?
Net neutrality is important because it encourages innovation. Advocates of net neutrality remain adamant that an open internet is an absolute must for rapid innovation.
However, when broadband internet service providers (ISPs) start picking their favorite apps, websites or services in the online world, that hurts the chances of up-and-coming startups from competing and in the process developing new technologies to grow. If there was no net neutrality, the chances of Amazon Prime Video or Netflix becoming mega-successful services would have been close to zero since broadband providers could have easily limited access to these services or even outright blocked them.
Some open internet advocacy groups feel that net neutrality is important not just because it promotes innovation but also free expression.
If only three or four giant telecommunication companies are able to control the market for broadband internet access/service, then that gives them too much power. They can use it to promote, limit, suppress and manipulate internet content according to their own objectives and monetary goals. Some websites and services may use paid prioritization to take advantage of such a situation and pay up to get preferential access.
It is true that many internet service providers made promises in the past that they would not engage in throttling or blocking content online. However, almost all the major players in the country took part in restricting access to certain types of video content even before the FCC got rid of the net neutrality rules during the administration of former President Donald Trump.
Because of that, net neutrality advocates have started to worry more about how a lack of stringent net neutrality requirements could allow broadband internet access/service providers to enable companies to get ahead of the competition by paying their way to fast internet lanes available on their networks. If left unchecked, such practices can put innovative organizations and companies out of business because they can’t or won’t pay for the fast internet lanes and/or are blocked from doing so.
What Did the Net Neutrality Act Allow?The net neutrality act allowed the Federal Communications Commission to regulate telecommunication companies or common carriers legally. More specifically, Title II of the Communications Act of 1934 grants the FCC that authority. Apart from that, Section 706 of the Telecommunications Act of 1996 gives the FCC the authority to assist organizations to deploy broadband internet access throughout the country.
The FCC can also help to implement and encourage special investments in broadband technologies. Moreover, similar net neutrality acts allow the FCC to make sure that the same regulations apply to any and all rival broadband internet access service providers.
Who Ended Net Neutrality?
The short answer is Ajit Pai. As the chairman of the FCC, he greenlit the FCC’s proposal to get rid of net neutrality rules and regulations.
But there is little to worry about now. Even though he could have extended his tenure as the chairman of the FCC for around six more months, Ajit left the commission on Jan 20, 2021. Some say he did not for the simple reason that the extension, as far as the FCC is concerned, comes at the price of the chairman being powerless in setting the organization’s agenda.
Of the many things Pai did during his tenure as the chairman of the FCC, he will be remembered most for dismantling net neutrality principles. He also worked hard on making wireless broadband service faster and more readily available.
What Is the Status of Net Neutrality?
Officially, the FCC killed neutrality on June 11, 2018. However, the current status of the net neutrality debate is as complex as it can get. As we have mentioned several times throughout this post, the concept of net neutrality is simple, but the debate surrounding net neutrality policies is not. It is as complicated as it can get.
Net neutrality is about preventing internet service providers from blocking, throttling and interfering with internet traffic. However, exactly what constitutes net neutrality and how the government should go about regulating it is a timeless debate that is so old that no one really knows what anyone means exactly when they talk about net neutrality and its status in the U.S.
Over the years, many incumbent governments have taken and imposed so many rules regarding net neutrality (and so many times) using different legal theories. In fact, if you take a look at the net neutrality legal issues and court cases going on these days, they are as far away from the true meaning of network neutrality as they can be.
Because of that, the debate about a neutral and open internet has turned into a debate about obscure legal terms, with lawyers using deep arguments about things that are completely irrelevant to network neutrality for the end-user. Very few involved in the debate seem to comprehend the idea that, after everything is said and done, net neutrality is about the consumer. More specifically, it’s about the consumer benefiting from choice and competition between different broadband services in addition to the federal government regulating state laws, especially when there are no federal regulations, to begin with.
Even more specifically, no one in the current free and open internet debate is asking if it is okay for Comcast to slow down access to Fox News and make access to CNN free of cost. And that is the fundamental problem in the current debate environment.
The current status of net neutrality will never become clear unless judges and lawyers are removed from the debate and those with proper authority write something into law that actually does something. We should mention here, though, that the court ruled that states are free to enforce their own laws regarding net neutrality. And if the current environment is anything to go by, state-level governments will oblige without a problem.
In any case, the current state of the debate is whether or not the internet is a common carrier telecommunications service or an information service.
Back in 2005, the Supreme Court gave a clear ruling that broadband internet was an information service. One justice by the name of Antonin Scalia considered the internet as a telecommunications service. The majority of the people involved in the debate today seem to understand that broadband internet should be considered as a telecommunications service. And because of that, broadband internet should be neutral.
During the tenure of Ajit Pai as the chairman of the FCC, the agency argued that broadband internet was an information service. Why? Because any access to broadband internet had to go through a pairing process between caching and DNS services.
The FCC under Pai went with the argument that since ISPs offered both caching and DNS services, broadband internet access must be considered as an information service. This forced the courts to hold lengthy discussions on the same old topic of whether internet service providers are offering telecommunication services or information services.
And if you thought the courts had a good idea of how much net neutrality regulation there should be, you would be wrong as in a 2019 ruling the court upheld the net neutrality repeal. The ruling did come with some caveats, though.
In other words, the federal appeal court supported the government’s decision to get rid of overly-strict regulation for those companies which allowed people to have internet access. Along with that, it said that the FCC probably did go out of its jurisdiction when it blocked local and state governments from making their own new rules around net neutrality.
Note:The fact that the U.S. Courts of Appeals for the District of Columbia Circuit supported one portion of the government’s position and showed concerns about another portion only gave rise to further debate about what net neutrality rules are and how broadband service providers should be regulated in the country.
Nevertheless, broadband service providers and the then-FCC chairman Pai deemed the ruling as a victory for the then-Trump administration. After all, the court did write that the regulation of broadband service providers had been the subject of a long litigation process, with broadband service providers being subjected to and then released from the common-carrier regulation.
The court also said that it won’t reclassify broadband service providers again as to not complicate matters further.
Net neutrality advocates remained firm though. Jessica Roseworcel, a member of the FCC, said that the decision of the FCC to get rid of net neutrality in 2017 was wrong on part of the American people and history.
She further said that Democrats would continue the fight for restoring 2015 net neutrality rules.
What Is the Save the Internet Act of 2019?
The Save the Internet Act of 2019 was a bill to bring back free and open internet regulation and restore other net neutrality rules present in the country back in 2015. The bill passed the House of Representatives by 232 to 190 votes. However, the senate shot the bill down and it died quickly.
If it had been passed by the senate as well, then that would have made it illegal for companies such as T-Mobile, Verizon and AT&T (big ISPs/telecommunications companies) to throttle or block internet access for their consumers. Moreover, the bill would have also given the Federal Communications Commission the power to enforce net neutrality principles with help from Title II of the Communications Act.
We have already alluded to the fact that the FCC under Pai wanted broadband service providers classed as communication services and not as Title II common carriers because common carrier services have to work under more regulation and strict checking. Common carrier services include electricity, gas and telephone services, along with many others. Moreover, if a service is classed as a common carrier, then it makes it easy for agencies such as the FCC to regulate broadband providers, punish them if they show behaviors that violate the terms of the Save the Internet Act, and enforce general net neutrality rules.
Conclusion: Do Internet Service Providers Want Net Neutrality?Lack of federal net neutrality regulations means broadband internet access/service providers are free to block or slow down or charge an extra fee for access to online content. However, states have taken up the mantle and have made attempts to pass their own state-level net neutrality protections. Washington, Oregon and California are the frontrunners in that regard.
Broadband companies and the FCC have made the argument that state regulation would make it hard for broadband services to deliver internet access since broadband crosses state boundaries. In other words, they want the state laws to go the same way federal laws went and that is, into the dustbin.
As far as the end-user is concerned, though, the vast majority of them haven’t seen much difference in their broadband speeds or general online experience since net neutrality laws were repealed. And that is likely to stay the same no matter what happens to net neutrality in the future and which side of the debate comes out on top.
However, if you notice your internet is unusually slow for certain sites or services, and not for others, your internet service provider may be throttling your connection.