FCC Repeal of Net Neutrality Leads to Lively Fight

Debate continues even after net neutrality’s apparent death last year, with the U.S. bishops among the voices advocating for its retention.

(photo: Unsplash)

WASHINGTON — The obituary for net neutrality — regulations governing how internet service providers deliver online traffic — had hardly been posted by the Federal Communications Commission in January when politicians rushed to resurrect it from the dead.

Since the FCC voted 3-2 to repeal the Obama-era “Open Internet Order,” state and federal lawmakers have acted to preserve the regulations for an open internet.

In a statement released before the vote, the U.S. Conference of Catholic Bishops (USCCB) voiced its support for net neutrality, saying the Church’s institutions depended on “robust protections” to promote the Gospel and engage people with their ministries.

“Without open internet principles which prohibit paid prioritization, we might be forced to pay fees to ensure that our high-bandwidth content receives fair treatment on the internet,” said Bishop Christopher Coyne of Burlington, Vermont, the USCCB’s communications committee chairman. “Nonprofit communities, both religious and secular, cannot afford to pay to compete with profitable commercialized content.”

Net neutrality is both a principle and, until last month, a regulation. As a principle, net neutrality refers to the equal treatment of all users, traffic and websites online. Net neutrality regulations prevent internet service providers (ISPs) from blocking or throttling content or accepting payment to create “fast lanes” and prioritize some traffic over others.

The Open Internet Order issued in 2015 under former FCC Chairman Tom Wheeler classified broadband internet as a public utility and laid out new rules for ISPs to follow. The three “bright line” rules forbade broadband providers from blocking consumer access to legal content and services, throttling internet traffic selectively or establishing paid prioritization of internet traffic. The agency also reserved the power to investigate and punish any behavior it found harmful to private customers or to content providers.

That regulatory framework effectively evaporated when President Donald Trump appointed Ajit Pai, a net neutrality critic, the new FCC chairman. The “Restoring Internet Freedom Order,” passed in December and published in January, largely removed broadband from FCC oversight, restored the role of the Federal Trade Commission in protecting broadband customers, and required broadband companies to be transparent about any throttling or paid prioritization.

In addition, the FCC declared that states could not establish their own laws regarding net neutrality.


Lawmakers Push Back

Several states have already challenged that last provision. Montana and New York’s governors have both issued executive orders forbidding any internet service providers that hold contracts with the state government from engaging in violations of net neutrality.

The California State Senate has passed a bill that requires any internet service provider not to block, throttle or prioritize traffic, sending it for approval to the California Assembly. Washington, New York and more than a dozen other states have also seen legislation introduced to enforce net neutrality on ISPs.

More than 20 attorneys general have also filed suit against the FCC’s repeal of net neutrality regulations.

“The repeal of net neutrality would turn internet service providers into gatekeepers — allowing them to put profits over consumers while controlling what we see, what we do and what we say online,” New York Attorney General Eric Schneiderman said in a statement announcing the legal action.

Democratic senators have also moved to restore net neutrality regulations by using the Congressional Review Act to overturn the December 2017 order. The measure is unlikely to pass, however, since the Senate, House and White House would have to approve the legislation.


Popular Regulations Axed

A majority of Americans, including majorities of Republicans and Democrats, support net neutrality, according to separate polls by Politico and the University of Maryland.

Yosef Getachew, a policy fellow with Public Knowledge, a Washington, D.C.-based public advocacy group, told the Register the FCC rolled back “very popular” rules on net neutrality and “completely abandon[ed] consumers on broadband networks.”

The FCC, he said, for the past 15 years had played a role in protecting net neutrality for broadband consumers.

If the rules are not reinstated, Getachew said, “We could see a lot of negative consequences.” Major ISPs are now positioned to prioritize their video services over their competitors, while small businesses could have a harder time finding consumers online. ISPs could also use their “gatekeeper powers” to block or throttle their consumers’ access to the internet unless they pay a premium.

“History has shown us that self-regulation doesn’t work,” said Getachew. “When there’s such a huge business incentive and no competition in this marketplace, you’re going to see a lot of ISPs try and maximize profits by doing any type of action they can to discriminate online.”

He said the internet could end up looking like cable, where customers would be charged for packages allowing them to access certain content, like movie streaming or social media.

“That’s not what consumers want, that’s not how the internet was supposed to be, and that’s what the FCC’s former rules prevented,” he said.


Regulatory Overreach?

But according to Dylan Pahman, a researcher and managing editor of Acton Institute’s Journal of Markets & Morality, one of the problems with the 2015 net neutrality regulations was that it gave the government far too much regulatory power over ISPs. At the same time, Pahman said, net neutrality has admirable aspects, particularly in preventing ISPs from colluding with other websites to stifle competitors. In that sense, he said net neutrality as a principle helps preserve “an open field of competition.”

But, said Pahman, “My major concern is not so much net neutrality per se, but, rather, how the back-and-forth is going to affect us,” he said. “I see no strong indication that we’re going to get away from that. He expressed concern that a see-sawing regulatory environment will harm innovation and economic dynamism by making it impossible for companies to plan with any certainty for the future.

Daniel Lyons, a Boston College Law School professor and fellow at the American Enterprise Institute, told the Register that the FCC has received no congressional guidance on the extent of its powers and has been stuck with the task of creating 21st-century regulations based on an outdated 1996 telecommunications law.

Lyons said that until Congress revisits the issue to clarify the extent of the FCC’s powers regarding broadband providers, “We’re going to see this Ping-Pong match, especially now that the issue has become politicized.”


Access Concerns

Some proponents of net neutrality have claimed broadband providers were now empowered by net neutrality’s repeal to control what users access and block content at will. Spokesmen for several pornography companies, for instance, decried the effect net neutrality’s repeal would have on their industry.

Lyons, though, said he saw no basis for ISPs blocking any legal content.

“Consumers don’t want it,” he said. Any company that did so, he said, would be “pilloried in the press.”

For Lyons, the heart of the policy debate is paid prioritization — whether a company can pay for priority delivery for its traffic if its broadband provider’s network were congested.

“There are good and bad reasons why you might prioritize,” he said. ISPs benefit from paid prioritization by introducing a new revenue stream and allowing them more freedom in how they manage the flow of traffic. But companies could also go an anti-competitive route and prioritize the traffic of their subsidiaries or affiliates against that of competitors.

But, said Lyons, there does not seem to be congestion on broadband networks, and without congestion, there’s no reason to pay for priority delivery. Repealing net neutrality now was done with an eye on future growth, he said, and accommodating a predicted larger volume of traffic.

The net neutrality debate ultimately has been marked by “more heat than light,” said Lyons. “The average consumer is not going to notice a big change as a result of what the FCC did.” Lyons said that building new broadband infrastructure would answer many of the concerns of those in favor of net neutrality by providing more competition.

He said, “I don’t know that the net neutrality rule helps or hurts that.”

Nicholas Wolfram Smith writes from Oakland, California.