The US Federal Communications Commission (FCC) voted 3-2 on February 26, 2015 to approve the strongest Open Internet rules in the FCC’s history, reclassifying fixed and wireless internet service providers (ISPs) as telecommunications providers, not information services. That means ISPs will now be regulated, similar to phone companies, under much stronger legal authority granted by the Telecommunications Act of 1996.
Unfortunately, the public, providers, and the press still can’t see those rules to see what’s in them: ironically, it appears that the very same FCC commissioners who were insisting that the rules be released to the public before the vote may be delaying the release of the order by not contributing edits. What has been published is a press release and a fact sheet (PDF). The latter outlines the broad principles described in these rules mandating that broadband internet providers may not:
1) “block access to legal content, applications, services, or non-harmful devices,”
2) “impair or degrade lawful Internet traffic on the basis of content, applications, services, or non-harmful devices,” including throttling
3) engage in paid prioritization, where they “favor some lawful Internet traffic over other lawful traffic in exchange for consideration.”
Additionally, broadband ISPs are expected to be transparent about how they are adhering to the rules, including how they are engaging in reasonable network management.
Together, these rules will enable the FCC to enforce net neutrality, which is the broad principle that ISPs should enable access to all content and applications equally when an end user requests access to it. The way the vague “general conduct” guidelines described by the FCC will work in practice, however, has led to some concern at the Electronic Frontier Foundation about how the agency will use its newfound authority, which has in turn been echoed by critics that view net neutrality as a solution in search of a problem.
It’s going to take a while for the impact of these rules to filter down, particularly given the apparent delay in their promulgation, but the experience of the Netherlands might offer one glimpse of the future. Two years after enacting their own rules mandating that the principle of net neutrality apply to wireless and fixed broadband networks, no telecommunications apocalypse has descended upon the country and its consumers. There’s a major caveat in there, however, with respect to the amount of competition between ISPs that exists in the small country.
The case for strong Open Internet rules was built on a perceived market failure for high-speed internet access. In the US, the FCC’s own data show that 96% of consumers had access to broadband service with at least 6 Mbps download speed. The catch is that in the majority of major urban markets, there is effect a duopoly of providers, with two fixed broadband options. In the future, as more spectrum opens up, wireless options may become alternatives, but that’s not the status quo. In the absence of strong competition, net neutrality rules become much more important.
Globally, zero-rating (i.e., the practice of giving mobile network customers a specified amount of data usage for no extra charge) poses real challenges for net neutrality on wireless networks. In countries where services like Internet.org are live, a tiered internet already effectively exists: to get access to services beyond the zero-rated bundle, a user must pay an ISP more.
While the vote made the rules official, the future of net neutrality in the US is anything but settled.
At least one telecommunications company, whether AT&T, Comcast, or Verizon, is widely expected to challenge the rules in court and the Republican-controlled Congress will definitely have its say as well over the next two years. While net neutrality advocates hold that the reclassification under Title II provides a sound legal basis to survive a court challenge, opponents believe the opposite.
The Republican party appears to be split on net neutrality: some members want to defund the FCC to prevent enforcement of the rules, similar to the strategy that has been pursued with the Department of Homeland Security and a controversial immigration order from President Barack Obama. Others will seek to enact bipartisan legislation that would support weaker rules, including provisions more congenial to the powerful telecommunications companies that have spent millions upon millions of dollars on lobbying Congress over the past decade.
There’s no doubt that the issue has been forever politicized. When President Barack Obama made a public statement in favor of strong net neutrality rules, explicitly urging the FCC to reclassify under Title II, it fundamentally shifted the debate. The president’s position also politicized what has frequently been described as a “topic that generally begets narcolepsy,” bringing policy debates about the internet into mainstream politics. Former Secretary of State Hillary Clinton, who looks more and more likely to run for the Democratic Party’s nominee for President in 2016, endorsed the FCC’s reclassification of ISPs under Title II and net neutrality earlier in the week. The governors and US Senators jockeying for the Republican nomination will probably also have to take a stance on this issue over a long campaign.
Some will stand with Speaker of the House John Boehner in denouncing the FCC rules to regulate broadband ISPs as “a secret plan to put the federal government in control of the internet.”
When they do, they’ll face the ire of millions of members of a growing online public that views free expression and universal, equal access to content on fast networks as core to internet freedom.
“This is no more a plan to regulate the internet than the First Amendment is a plan to regulate free speech,” said FCC chairman Tom Wheeler, in answer to the tenor of criticism. “The action that we take today is about the protection of internet openness.”
As I wrote last year, historically the FCC has been subject to “regulatory capture,” where a government agency that was created to act in the public interest instead prioritizes the favored policies of business or special interests. The so-called “revolving door” in Washington between telecom companies and the agency that regulates them has only exacerbated that problem, as journalists, civil liberties advocates, and activists have warned for years. Wheeler’s own history as a lobbyist led to many people caricaturing him last year.
That lobbying power of his former colleagues is one reason that the FCC vote on reclassification is an extraordinary and historic moment. When the FCC introduced a rather different set of proposed Open Internet rules May 2014, every close observer of the agency I know thought adoption of Title II was extremely unlikely. As Columbia law professor Tim Wu wrote yesterday, everyone was wrong about net neutrality. When the FCC lost to Verizon in court last winter, what’s next for net neutrality was either Title II or a tiered internet.
Instead, a group of activists prevailed in the conflict of net neutrality, demonstrating that online activism paired with direct engagement with an agency rulemaking process can result in an policy outcome different than that desired by powerful industry incumbents.
As a result, net neutrality advocates like Stanford professor Barbara van Schewick hailed yesterday’s vote as “among the greatest public interest victories in U.S. history.”
“One year ago, today’s decision seemed impossible,” she said. “Large and powerful companies fought hard to end net neutrality. But millions of Americans — Internet users, start-ups, small businesses, artists, scholars, civil rights organizations, public interest groups and many others — organized to protect the future of the Internet. They took to the streets, used every tool the Internet has to offer, and submitted a record breaking four million comments to the FCC — and the agency listened.”
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