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Why 2015 May Be the Year We Solve Net Neutrality BY CHLOE ALBANESIUS
T he Internet is an amazing innovation that has transformed the world as we know it. But how do we keep it open and accessible to all? Can Internet service providers be trusted to police themselves and let
competition guide the way? Or should regulators step in and set up rules of the road to ensure equal access to the Web?
These questions have been plaguing regulators and ISPs alike for years now, but it’s looking as though there’s the possibility that in 2015 the Federal Communications Commission (FCC) will finally issue rules that actually stick. And the agency might get there by taking a very controversial route.
OPEN
NET NEUTRALITY? You’ve probably heard the term “net neutrality.” Perhaps your eyes glazed over as politicians droned on about “Internet fast lanes” or “protecting the Internet.” But what are they talking about? The Internet seems to be working just fine, right?
Therein lies the dilemma. The Internet does indeed work quite well, but there are those who are concerned that that might not always be the case. Net neutrality, therefore, is the idea that everyone should have equal access to the Internet. Amazon, for example, should not be able to pay for Amazon.com to load faster than eBay.com or Etsy.com. ISPs, meanwhile, are at liberty to speed up (or slow down) their entire networks, but they cannot cut off access to one particular website or platform (such as Netflix) because those sites are eating up a ton of bandwidth.
In theory, all parties in the net neutrality debate are in agreement about those basic tenets. But they disagree over whether the government needs to step in and monitor the situation. If you ask the ISPs, they are fully capable of policing themselves and would never actively break the rules of net neutrality because they would lose customers. They also argue that requiring them to follow onerous rules would make them less inclined to invest in new technologies—like gigabit Internet—for fear that they would not be able to run their networks as they please.
On the other side, though, are consumer groups and certain lawmakers who point to examples of ISPs behaving badly. In fact, the modern-day net neutrality debate started with accusations that Comcast was cutting off access to peer-to-peer networks such as BitTorrent during peak times in order to better manage its network. Meanwhile, consumers in many cities do not have multiple options when it comes to high-speed Internet providers, meaning if they don’t like their Internet speeds or service, they’re stuck.
The Internet does indeed
work quite well, but there are those who are concerned
that that might not always be the case.
COMCAST VS. THE FCC The net neutrality battle royal dates back to 2007, when Comcast was accused of cutting off access to P2P networks. Comcast admitted to delaying traffic during peak times, but denied that it ever blocked access. But a complaint was filed with the FCC, and the agency’s then-Chairman Kevin Martin stepped in to issue an enforcement action against Comcast in late 2008.
There were no fines, but the FCC called on Comcast to be more transparent about how it runs its network—and to stop the P2P blocking. Failure to do so meant the potential for fines or another enforcement action.
By that time, then–presidential candidate Barack Obama had publicly voiced his support for net neutrality, so the issue was picking up steam, and political lines were drawn.
Comcast responded by appealing the FCC’s decision on the grounds that it was “legally inappropriate.” We support net neutrality, Comcast said, but Congress—not the FCC—should make the rules. More than a year later, in April 2010, a court sided with Comcast and vacated the FCC’s enforcement action. VERIZON VS. THE FCC Under the leadership of a new chairman, Julius Genachowski, the FCC got to work crafting actual net neutrality rules in the wake of the Comcast ruling. After months of back-and-forth with the FCC’s legal team, a divided commission approved an order in December 2010 that included three high- level rules: transparency, no blocking, and no unreasonable discrimination.
The ISPs were not willing to take that lying down, though, and this time it was Verizon that sued the FCC—again on the grounds that it had no authority to handle this issue. It took several years for that case to wend its way through the system, but in January 2014 history repeated itself and a court sided with Verizon.
THIRD TIME’S THE CHARM? That brings us to today and yet another FCC chairman, Tom Wheeler, who decided to take up the net neutrality issue once again. But seeing as how the FCC was rebuffed by the courts twice, Wheeler knew he needed a different approach. What he initially came up with, however, was not exactly what net neutrality advocates had in mind.
Wheeler floated the idea of allowing broadband providers to strike deals for prioritized traffic, provided those deals are “commercially reasonable.” The move was puzzling because it seemed to be the complete opposite of what net neutrality was intended to do.
The idea was never really fleshed out (publicly at least), and the FCC didn’t identify what would qualify as “commercially reasonable.” The only example the agency provided was a prioritized connection to someone with an at-home heart rate monitor that didn’t significantly impact Internet traffic to anyone else. But detractors envisioned a major broadband provider striking a deal with a company like Netflix to serve streams faster than those of a rival, such as Hulu.
Wheeler repeatedly insisted that it was not his intention to allow for deals that created Internet fast lanes, and said his agency would stop any ISP that tried to do that. But the uproar prompted the chairman to water down his proposal. When the FCC voted in May 2014, it merely asked for public comment on the idea of paid prioritization rather than lay out actual rules.
And comment Americans did. When all was said and done, the FCC had received more than three million public comments on the issue. PRESIDENT OBAMA WEIGHS IN Throughout the net neutrality debate, one controversial option has been considered but never implemented: reclassifying broadband Internet as a telecom service.
FCC IN THE HOT SEAT Tom Wheeler, the current chairman of the FCC, is facing controversy over approaches for dealing with the issue of net neutrality in the United States.
It sounds like a major yawn, but the mere thought of reclassification (known in D.C.-speak as Title II for its placement in the Communications Act) is enough to give the nation’s ISPs and wireless carriers a massive coronary.
Right now, broadband is considered an “information service” rather than a “telecom service.” Reclassifying it as a telecom service would give the FCC more authority to regulate the industry, and lessen the chances that future net neutrality rules would be struck down.
But it’s largely considered a last resort. The road to classifying broadband as an information service prompted a court battle that went all the way to the Supreme Court in the Brand X case. So any move to reverse that decision is sure to face a similarly fierce battle.
One person who is on board with reclassification? President Obama. In November, he called on the FCC to develop “the strongest possible rules to protect net neutrality”—via Title II.
Reaction was swift, with those in the cable industry saying they were “stunned” and the wireless industry calling it a “tectonic shift [that] would create devastating results.” AT&T even said it would “pause” its gigabit Internet rollout until the uncertainty surrounding net neutrality was resolved.
Wheeler said he would consider Obama’s proposal, and during a recent appearance at the Consumer Electronics Show, Wheeler suggested that Title II is on the table.
Though he declined to lay out the specifics of his plan—which he will circulate to his fellow commissioners on February 5—Wheeler told CES attendees that “there is a way to do Title II right.”
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A FRIEND IN THE OVAL OFFICE President Obama has expressed support for reclassifying broadband Internet as a telecom service, thus giving the FCC more authority over it. ni
Ultimately, the FCC wants to ensure that “innovators and consumers have open access to the networks” while also “creating an environment that provides sufficient incentive for the ISPs to want to invest [and] build more and better networks,” Wheeler said.
THE CONGRESS PROBLEM Ultimately, the easiest way to get net neutrality rules on the books is for Congress to pass a bill and for President Obama to sign it into law. But that’s a tall order, especially with the Republicans now in control of both the Senate and the House of Representatives.
Democrats have introduced a number of net neutrality bills over the years, but none has made much progress. Republicans, meanwhile, have drafted legislation that upholds the basics of net neutrality (with some very broad caveats) but would ban action on Title II. So it will be tough to get past President Obama’s desk.
THE ROAD AHEAD Reclassification is not a given. As President Obama pointed out last year, “The FCC is an independent agency, and ultimately this decision is theirs alone.”
The FCC could, of course, just leave the issue alone, but as those three million comments might suggest, people are clearly passionate about the issue—on both sides. And the Internet is not going anywhere. As more and more people get online, start Web-based businesses, switch over to mobile-only households, and just generally live more digital lives, we’re going to need some rules of the road.
Chairman Wheeler appears to realize this. His new rules—whatever they may be—are scheduled to go up for a vote at the agency’s February 26 open meeting. That could change, but at this point, the FCC is on track to go into battle once again.
We’re going to need
some rules of the road.
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