Net Neutrality: Is This the End?

Towards the end of last month, FCC Chairman Ajit Pai began to take steps to block elements of an order from Obama administration dealing with privacy and net neutrality–the effects of which were set to take effect at the beginning of this month.  Since then, with many already sounding the death knell for net neutrality, the FCC has softened its stance slightly but many remain concerned about the future of net neutrality as a policy as Mr. Pai continues to take steps with the potential to weaken the steps the Obama administration took.

We’ve explored the Obama administrations strides in strengthening net neutrality and an open internet in the past–from the FCC’s Open Internet Order in February of 2015 to last October’s vote limiting the amount of information, types of information and manner in which your internet service provider (ISP) can mine your personal data.  Both of these changes were opposed by Mr. Pai when they were introduced.

Since the advent of the Trump Administration, and the appointment of Mr. Pai, there has been a notable pivoting towards deregulation of ISPs.  With this mind, let’s take a look at what the regulations being affected do, and what their likely future will be.

The FCC’s Approach to Net Neutrality and What it Means?

The Open Internet Order is almost certainly the single most substantial advancement towards net neutrality our government has taken in a decade–finally providing a means of actually enforcing net neutrality as a concept.  Net neutrality, for those unfamiliar with the term, is the concept that internet providers should treat all data on the internet equally–regardless of source.  All information passing through broadband networks and backbone networks should be given equal priority to the extent possible without effecting function.  For instance, text on a website can have data packets arrive in any order while video and audio must arrive in a specific order and in a timely fashion to function–net neutrality doesn’t require companies to ignore the concerns of functionality.

What net neutrality does is prevent blocking of content, throttling content (intentionally slowing down some content or speeds up others), and paid prioritization where some services are stuck in a “slow lane” because they do not pay a special fee. Essentially, it keeps ISPs in the business of charging users for internet connection as opposed to charging edge providers for users while the people buying internet service from them suffer.

The Open Internet Order, a 183-page behemoth, changed the classification of ISPs to that of a public utility such as telephone services–often known as common carrier status.  It also sets forth five rules that ISPs must abide by:

1. ISPs “may not block access to legal content, applications, services, or nonharmful devices.” In other words, ISPs can’t block access of any legal user to any legal website.
2. ISPs can’t throttle, or slow down, the delivery of any legal internet traffic.
3. ISPs can’t make a company pay to give its data packets priority delivery or prioritize the delivery of data from their own services.
4. ISPs can’t adopt practices which would harm consumers or people providing services on the internet.
5. ISPs must offer transparent specifics on how they run their broadband networks.

The policy also provides for an exception for reasonable management of a broadband network. ISPs are allowed to prioritize data so as to keep things running smoothly, but cannot use this for their own commercial advantage.

Getting to this point, however, was quite an uphill battle, both in the courts and within the FCC itself. The FCC initially proposed much weaker regulations.  However, the combination of a call from then-President Obama for stronger rules, 4 million comments filed with the FCC, and protesters who went so far as to sit in the FCC Chairman’s driveway and demand a stronger policy, all came together to convince the FCC to pass the final version of the Open Internet Order.

This progress seemed to come to a standstill after a February 24th statement from the FCC declaring that Mr. Pai had taken steps to block the privacy rules mentioned above–changes which were set to go into effect at the beginning of this month.  This statement was widely taken as a first step towards rolling back the clock on net neutrality and common carrier status for ISPs–many speculated an ultimate goal of deregulating the market as much as possible.  Indeed, the language of the statement included commentary noting that Mr. Pai intended to “harmonize the FCC’s privacy rules for broadband providers with the [Federal Trade Commission]’s standards for others in the digital economy.”  This was taken as an implication that Pai aimed to remove common carrier status from ISPs–treat them the same as others in the digital economy.  This would basically neuter the Open Internet Act by undermining the legal premise on which it applies authority to ISPs in the first place.

The Future for Net Neutrality

The fears of those in support of net neutrality, an end to net neutrality as a concept, does not appear to be in the cards at this point.  Instead the likely outcome, based on the comments coming out of the FCC and those reporting on the FCC, is a substantial weakening of the Open Internet Order.

It is still unclear exactly what form this would take.  However, it has been implied that it would likely to see changes allowing ISPs to prioritize data in certain situations–basically creating carveouts to the general rule.  There’s no particular indication as to what these carveouts might include, but it is easy to imagine a situation where exceptions could swallow the rule.

A large part of why Mr. Pai is likely to take this approach is that the Open Internet Order is already final and has endured the rigors of fierce court challenges; precedent is on its side.  This means that just killing the rule would be fairly difficult for the FCC.  If the rule was to be fully stripped away, it would most likely involve an act of Congress explicitly doing so.  However, Congress and the Trump administration do not seem to be making such legislation a priority.

The argument against net neutrality and the Open Internet Order has always been that it takes away ISP’s motivation to improve the speed and capacity of their networks–although precious little evidence of this has actually been produced.  Frankly, the dangers of allowing ISPs to control access on the internet seem far greater.  The Open Internet Order doesn’t seem to be on the chopping block, but we’ll have to see if what we’re left of the Open Internet Order will actually accomplish what it set out to do.