Lloyd Kaufman

Greetings from Tromaville! Please read and share this debate on Net Neutrality, which should be of interest to everyone who enjoys a free and open internet.

Net Neutrality in a Nutshell

“Net neutrality” refers to the concept that all traffic carried on the internet should be treated the same way unless there are objective technological reasons for different treatment. The debate over the past few years has been about whether that principle should be adopted in enforceable laws or regulations and, if so, subject to which exceptions.

Some exceptions are generally accepted, at least in theory. “Reasonable network management” is permitted, which may allow a broadband company to time-shift or otherwise re-route heavy volumes of traffic during certain times or day or to take steps that are necessary to preserve the technological integrity of its network. Similarly, different types of traffic require different quality levels of transmission to be acceptable (for example, the data packets involved in email can be delivered more randomly than those in video programming for which “bursts” are disruptive). Interference with, and blocking of, illegal transmission such as child pornography also is understood as necessary even by public interest and First Amendment groups.

Pro-Net Neutrality

What concerns supporters of net neutrality is the lack of any legal protection against discrimination by Internet service providers on commercial (rather than narrow technological) grounds. For content providers, this translates to a fear that the broadband providers may (1) overtly discriminate in favor of their own programming services, whether in terms of fees, or quality of service, or positioning before subscribers; (2) grant preferential treatment to large content companies, creating “fast lanes” that are available only at a price that cannot be paid by smaller companies/program services; (3) block certain applications or services that cater to independents, as Comcast did when it choked off all P2P services (both legal and illegal), including small but legitimate video sharing services; or (4) otherwise tamper with or hinder new services, applications and/or devices that compete with the major studios, cable companies, etc.

Other interests also support net neutrality and believe regulations are needed to protect against abuses. Public interest and consumer groups are concerned that traffic may be blocked due to the actual content of the messages (as AT&T did in blocking an email campaign in favor of abortion choice). Technology companies such as Google and Skype are concerned that new applications and services may not be accommodated if they compete with those of the Internet service provider. Financial institutions who must service consumers using the consumer’s choice of Internet service providers are vulnerable to leverage (and potentially extra fees) from those same providers. In all cases, the concern is that – absent net neutrality – the law does not provide clear guarantees against abuse of discretion by the Internet service providers.

Opposing Net Neutrality

On the other side of the debate, arguments against net neutrality regulations focus on three main themes. First, there is a foundation belief that government should not interfere in the conduct of legitimate business in the absence of a compelling public interest in doing so. The argument continues that regulation is inherently rigid and slow-moving, whereas the Internet economy is flexible and innovative, characteristics that can only be harmed if government bureaucrats intervene. Further, while the proponents of net neutrality have well-articulated fears about the power of the broadband companies to “choose winners and losers” with their traffic management policies, there are other laws – including the anti-trust and unfair trade laws – that may be used to reach any specific examples of that behavior. Moreover, the consumer himself has control over his choice of broadband company and can change to one that offers different content or service quality, thus ensuring that competition rather than regulation solves the problem. (This assumes that consumers have a choice of broadband company, but today in fact most U.S. consumers have only one cable and one telephone based choice for high-speed Internet.)
There is also a concern that a rule preventing “discrimination” is overbroad and simply will stop broadband companies from effectively handling traffic that has different characteristics, from responding to congestion at times of peak traffic, and from establishing economical pricing models for specialized services and markets. This in turn will limit or destroy the financial incentives for private investment in expansion of the country’s broadband infrastructure, a vital element to maintaining U.S. competitiveness worldwide.

Two other arguments are worth mentioning: the MPAA initially opposed “net neutrality” on the grounds that the promises of “non-discrimination” and “transparency” would undermine the effort to identify and weed out online piracy. That concern has abated over the years — new technology makes the search for pirated files more precise and proposed “net neutrality” regulations have been crystal clear that the policy does not protect illegally duplicated or delivered content. Finally, some free speech advocates believe that any government intrusion into the operation of the Internet creates a threat of censorship and/or invasion of privacy through monitoring of communications. For these groups, “net neutrality regulation” is a contradiction in terms.

Current Battles

In 2014 the federal Court of Appeals for the D.C. Circuit in Verizon v. FCC struck down the FCC’s 2010 Open Internet rules with respect to Internet service providers (ISPs) use of traffic blocking and unreasonable discrimination. However, the Court reaffirmed the FCC’s authority to promote the growth of the Internet, advising the FCC that if it seeks to treat Internet access like a “telecommunications service” (providers of which are “common carriers” under Title II of the Communications Act), it cannot classify it as an “information service”.

On February 26, 2015, the FCC adopted new net neutrality rules (also called the “Open Internet order”) that reclassified ISPs as telecommunications services and thus subject to regulation to prevent discrimination among similarly situated customers.

These new rules apply to both fixed and mobile broadband and require that ISPs provide consumers with access to legal content and services on an equal basis regardless of its source. Specifically, the new rules adopt the following 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.

In addition, the Open Internet order establishes a legal standard for other broadband provider practices to ensure that they do not unreasonably interfere with or disadvantage consumers’ access to the Internet.

These new rules are largely regarded as the strongest rules ever applied to ISPs and were adopted by a divided Commission on a narrow political-party line 3-2 vote. However, as part of their adoption, the Commission also refrains (or “forbears”) from enforcing provisions of Title II that are not relevant to modern broadband service.

For those that support net neutrality, the FCC’s Open Internet order is viewed as a “win”, but the future remains unclear since there are pending legal challenges filed by the trade associations representing the major cable and telephone carriers and strongly voiced opposition from some sectors within Congress.

Opponents argue that the decision-making record was not adequate to support the FCC’s decision to re-classify Internet access service as a Title II service and that the rigid Title II regulatory regime will chill investment in further expansion of broadband networks and cutting edge services.

The new rules will go into effect on June 12, 2015, unless stayed by court order while the various appeals are pending.

This entry was posted on Wednesday, May 13th, 2015 at 2:16 pm and is filed under News. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.