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Net neutrality: More than just fast lanes

If you haven’t been hit by major 2014 nostalgia recently, it’s because you either missed the headlines then, or you have given up reading the news now. Because yet again, net neutrality is the trending topic of the day.

Net neutrality, painted in popular coverage as vital, important and immediate and yet never fully explained, is a simple concept that covers rules requiring Internet service providers (ISPs) to connect users to all lawful content on the Internet equally, without giving preferential treatment to certain sites or services. As so many have argued throughout this debate, net neutrality supports the ideals of equality and choice that make the Internet such a great place. But new governing rules, proposed by Trump-appointed Federal Communications Commission (FCC) chairman Ajit Pai in the Restoring Internet Freedom Order (which will go to vote Dec. 14), are being seen as a threat to the net neutrality.

Popular media has been quick to characterize this bill as a fight between big ISPs and lovers of the internet. The argument is that the passing of this order will lead to the end of net neutrality and create “fast lanes” for big internet giants – leaving smaller companies and startups struggling to pay for a foot in the door, and leaving users with limited internet access.

But this argument about whether or not this order threatens net neutrality is about more than just “fast lanes” for certain companies. In fact, both sides of this fight claim that they want the same thing: an open, free Internet. Calls to protect net neutrality often exclude this, but at least in theory, the big ISPs who are painted as the enemy in this battle also support net neutrality and have made several statements saying so. And yet, the debate rages on, because while both sides state that they want the same thing, their roads to getting there are very different.  

This debate is not a new one – in fact, it’s even older than the infamous 2014 John Oliver video that led to the crash of the FCC’s website. The problem at the center of this debate can be traced back to the  1996 Telecommunications Act, which introduced two sets of regulations: Title I and Title II.

Title II laws are much stricter in ensuring neutrality and give the FCC the power to enforce these rules over ISPs by classifying them as telecommunications services. Title I, on the other hand, is much weaker and comes into effect if ISPs are classified as information services. The new order by Pai reverts to defining ISPs as information services, thus giving up the FCC’s power to regulate ISPs, handing it over instead to the Federal Trade Commision (FTC) or Congress.

But there’s a reason why the FCC introduced Title II regulations. Initially, the FCC regulated ISPs under Title I, but this power was put to test in a 2007 case, in which Comcast was suspected of malpractice for throttling BitTorrent traffic. The FCC told Comcast to stop throttling, but Comcast took the FCC to court, claiming it didn’t have the power to regulate ISPs under Title I laws. In 2010, a federal appeals court confirmed this and told the FCC they needed to find a stronger law if they wanted to regulate ISPs.

As Devin Coldewey explains for TechCrunch in a description of the winding history of the net neutrality battle, the FCC, at this junction, could have let the FTC regulate ISPs, but while the FCC creates guidelines and therefore acts proactively, the FTC acts on complaints and therefore reactively punishes those that behave in the wrong manner. So instead, in 2015, the FCC issued the Open Internet Order, which classified ISPs as a “telecommunications service” – allowing Title II laws, the strongest in securing net neutrality, to apply to the companies.

Pai’s new law moves to reverse that classification, allowing the FCC to return to “light touch” regulation of the industry, and is why advocates are concerned for the future of net neutrality. Pai’s argument to reclassify ISPs rests on several contested claims about how the internet works – as a letter by nearly 200 experts put out by the Electronic Frontier Foundation explains, his interpretation of the internet and ISPs as information services is outdated.  

But behind this legal back-and-forth over definitions is a deeper question over who should be regulating ISPs: the FCC, the FTC or Congress? As Berin Szoka argues for Wired, there are some who believe that only Congress can fix net neutrality, the FCC shouldn’t have the power over the internet that it does right now, and that is why Pai and others are fighting for this new definition of ISPs. This is in line with the views of ISPs like Verizon, AT&T and Comcast, which posit that it should be Congress, and not the FCC, that enforces laws against broadband providers blocking or throttling traffic. These companies claim that they too believe in a free and open Internet – though there have been cases against all three of these companies interfering with internet services to users, as the ACLU documents on its net neutrality information page – but that they believe the best road to a free internet is not through the Title II restrictions.

But to many net neutrality activists, acts of Congress don’t seem like the road to take to secure a free and equal internet. They believe that acts of Congress are often too slow or unreliable, and that it is vital that the FCC has regulating power for any new ways in which ISPs might try to disrupt net neutrality.

It is this argument that is boiled down and making its way through social media: The idea that getting rid of Title II could lead to slower legislation, and that more uncertain results could lead to more centralization of power to the largest internet companies. This may mean “fast lanes” for a few big companies, though Robert McMillan explains in a 2014 article that this is already the case, as internet giants like Google have “peering connections” with big ISPs for more efficient results. But the centralized power could still be dangerous, since as ISPs gain more monopoly power, they carry all the same risks of monopoly: higher prices, lower quality of services, unfair control over access and all the other vices of disproportionate bargaining power.

So the question at the center of the net neutrality debate is not about an open Internet, but a more fundamental, boring and complicated one: Who gets to regulate the Internet to ensure it remains open and free? That is a question that is harder to answer than whether or not one believes in net neutrality, but one that is vital to answer in securing that same ideal Internet that so many have spoken out in favor of.

 

Contact Rhea Karuturi at rheakaru ‘at’ stanford.edu.

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