Jay Kesan | Publications

Net neutrality means that your Internet service provider should not be able to treat some type of content on the Internet different from others. In other words, all websites and their content would be considered to be equal.

Net neutrality is about competition and profit in the Internet access market. The Federal Communications Commission – the FCC — is the government agency that has been most involved in net neutrality issues. Its authority to regulate high speed Internet services has been hotly debated over the years. The FCC has the most authority to regulate common carriers like telephone companies..

In 2005, the Supreme Court decided the Brand X case. Cable Internet, according to the Supreme Court, was an information service, not a telecommunications service,and so the common carrier rules did not apply.

After the Brand X case, the FCC re-classified DSL service as an information service, even though as a service provided by phone companies,DSL was originally thought to be a common carrier service. The FCC also tried a variety of tactics, including a non-binding Internet policy statement, to curb abuses using their existing authority.

Finally,in 2015,under pressure to preserve net neutrality, the FCC re-classified broadband as a common carrier. Now, in December 2017, by a partisan 3-2 vote, the FCC,under President Trump, repealed that 2015 re-classification of high speed Internet service. The FCC argues that its repeal is needed to encourage broadband innovation and investment, especially with the rapid deployment of 5G wireless technology.

This decision to overturn net neutrality has been praised by telecom companies, but it is criticized by technology companies such as Facebook, Google, and Amazon and by consumer groups.

So where do we go from here? 

Without net neutrality, paid prioritization enters the picture. Internet service providers can charge based on the type of content served, for example, charging more for multimedia content, and they can also prioritize certain traffic over others. This means that, in the future, we may see tiers of Internet service causing your Internet bill to look like your cable subscription, perhaps with different payments for access to various websites.Today, there are differences in price based on your speed of Internet access or the reliability of your connection. But, in the future, they may also be based on the type of content being accessed.

In addition, smaller websites may also not be able to afford the payments to ISPs to deliver their content rapidly compared to large, popular websites

The FCCs’ decision brings another agency, the Federal Trade Commission – the FTC — into the picture.  The FTC is the primary agency that handles consumer protection issues and it can apply its competition law expertise to provide some protections against deceptive and anti competitive consumer practices.Unlike the FCC, the FTC lacks the technological expertise regarding Internet communications, and it remains to be seen how successful they will be at enforcing consumer protections or making rules regarding broadband access.In its recent repeal, the FCC has included certain transparency requirements to make it easier for the government to oversee broadband providers’ conduct.

Before this repeal really takes hold, there are legal hurdles ahead.  The attorneys general of several states, including New York, Pennsylvania, Massachusetts and Minnesota, have announced their intention to challenge the FCC’s repeal in court.

In another approach, lawmakers in states like California, New York, Washington and Massachusetts have proposed state bills to establish net neutrality protections.  But does the FCC’s de-regulatory federal approach preempt state and local action regarding net neutrality?  In the past, courts have upheld the FCC’s ability to preempt state regulations in the telecommunications market.

Finally,it will take months for the FCC’s net neutrality repeal to be approved by the Office of Management and Budget.  So stay tuned for more developments regarding your Internet service.

Author – Jay Kesan

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