Net Neutrality

The government plans to set a standard of rules regarding the Internet and broadband access.  In other words, the government wants to control Internet access. This is the FCC’s statement on the proposed regulations:

  • No Blocking: broadband providers may not block access to legal content, applications, services, or non-harmful devices.
  • No Throttling: broadband providers may not impair or degrade lawful Internet traffic on the basis of content, applications, services, or non-harmful devices.
  • No Paid Prioritization: broadband providers may not favor some lawful Internet traffic over other lawful traffic in exchange for consideration – in other words, no “fast lanes” – including fast lanes for affiliates.

Opponents of net neutrality argue that broadband service providers have to be free to manage their networks so all customers receive adequate levels of service. They also argue that regulation of the internet will negatively influence innovation, which the internet thrives on, and impede free speech. Most importantly, they make the point that some level of restriction, or at least prioritization, is necessary to promote the best interest of consumers as a whole.

Net neutrality opponents would argue that bandwidth is a limited commodity. With all types of internet traffic passing over the network, wouldn’t most people want to allow a doctor waiting to view a high resolution image CAT scan for a critical ER patient, priority over someone simply downloading a movie or a music file?

If net neutrality means anything, it means no unfair discrimination based on application or service, and these rules seem aimed at just that. But there’s at least one worrisome bit: the repeated reference to “lawful content.” What is considered “lawful content” in the eyes of the government? Back in May, the FCC asked for comment on whether and how it should address interconnection and it has now promised to address ISP interconnection practices that are unjust and unreasonable.  Based on what we know, the FCC plans to address such complaints on a case-by-case basis.  That, unfortunately, could be a recipe for litigation and confusion, as the FCC, providers, and customers fight over what qualifies as “unjust and unreasonable.” The same concern applies to the FCC’s promise to adopt a “general conduct” rule.  The FCC says its proposal will “create a general Open Internet conduct standard that ISPs cannot harm consumers or edge providers.” Understandably, the FCC wants to have the flexibility to address future unfair practices that we can’t yet anticipate, without having another decade-long fight.  But it’s also very easy to see it as a recipe for FCC overreach.  Standard legal procedures do not required the Federal Communications Commission to state what rules will be dictated in their new standards.  In fact, nothing requires the FCC to publish iterations of the rules it votes on—it just needs to base the rules on the public record.  This same limited information has been present in both Obamacare and the Trans-Pacific Partnership.  Permitting the government to make demands and rules without complete transparency has been known to result with disaster.

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