EFFecting Digital Freedom
by Vera Ranieri
Net Neutrality
The Internet has been an amazing driver of innovation.
New companies have sprung up seemingly from nowhere to deliver new and useful services. Important to that ecosystem is the idea that all traffic on the Internet is generally transmitted without unfair discrimination based, for example, on the identity of the sender or receiver of the information or the protocol being used. It is this idea that we refer to as "net neutrality."
As an Internet subscriber, you don't expect your ISP should care about what bits are transmitted across its lines. A bit from your favorite social media website generally costs just as much for your ISP to deliver to you as a bit from your favorite pizza parlor does. As an entrepreneur hoping to become the next best social media website or pizza parlor, you're glad that your ISP doesn't care: you have just as much access to the consumer as the next guy.
Unfortunately, ISPs have already indicated they are more than willing to abandon net neutrality by discriminating against certain types of traffic. In 2007, Comcast was caught interfering with their customers' use of BitTorrent and other peer-to-peer file sharing systems. More recently, in 2012, Verizon was fined for charging customers for using their mobile devices as a mobile hotspot.
Of course, Internet providers have long offered different levels of service to consumers for varied pricing.
For example, a small business that makes extensive use of video conferencing has the option of paying more for more bandwidth, and that's fine. Problems arise, however, when ISPs use their position as gatekeepers to play favorites, provide faster or slower connections to certain websites, and charge website owners for access to the ISP's customers. At that point, user choice becomes a smaller and smaller driver for innovation.
The History of the FCC and Net Neutrality
Thus, the fear is that without net neutrality rules in place, ISPs act in ways that threaten innovation culture. Recognizing this risk, the Federal Communications Commission (FCC), the agency tasked with overseeing telecommunications, has twice tried to enact net neutrality rules. But each time, the rules were struck down by the courts.
Why?
The FCC, as an administrative agency, can only do what Congress has given it authority to do. And if it tries to do something that goes beyond that, a challenger may be able to get the rules struck down in court. And this is what happened to the FCC.
Because of a decision made by the FCC in 2002, the FCC hasn't classified cable-based ISPs as a "telecommunication" service (something that would mean classification under Title II of the Telecommunications Act).
Instead, the FCC determined that such ISPs were "information services" and therefore outside the scope of Title II.
But the FCC saw the need for net neutrality, and attempted to bring that about using authority other than Title II.
The first tried to enforce net neutrality under its "ancillary authority." Comcast challenged that authority, and in 2010 the FCC's rule was struck down. The FCC also tried to bring net neutrality by using its authority under "Section 706." This time Verizon challenged that rule and in early 2014 it succeeded. The reasons why the courts struck down the rules are complicated and mired in technical legal details. But the basic point from each case is this: because the FCC tried to make rules where Congress hadn't given it authority to do so, the rules were not allowed.
What Now?
Today, the debate centers around whether the FCC's should "reclassify" ISPs under Title II or continue to try to use Section 706 (even though using that section has already been rejected by the courts). Many people believe that Congress gave the FCC's authority to enact net neutrality under Title II if it determines that ISPs are, in fact, a telecommunication service.
But there are those (ISPs in particular) that are against Title II reclassification, as they fear it will impose a whole set of rules that were developed for telephone service. Most of those rules just don't make sense when we're talking about Internet infrastructure. For example, there are rules about obscene phone calls, rate schedules, telephone operator services, etc., which are unnecessary to net neutrality.
ISPs and those against reclassification aren't telling the whole story.
An important aspect of Title II regulation is that it allows the FCC to "forbear" from full regulation - that is, decide not to apply all the rules that would normally come with Title II. This forbearance is a formal process, and a future FCC would have to go through an onerous process to reverse a decision to forbear.
Because of forbearance, the FCC can choose to not enforce a given rule if it is not necessary to promote good practices, or to protect consumers and the public interest. Forbearance is crucial to net neutrality because it helps to limit FCC regulation. If the FCC reclassifies broadband as a telecommunications service, which it must if it is going to do its part to protect an open and neutral Internet, then it should also use its ability to forbear to ensure as little regulation as possible to enact net neutrality.
How You Can Help
The Electronic Frontier Foundation (EFF) has created a simple form that you can use to submit comments to the FCC, available at www.DearFCC.org.
Already the FCC has received over three million comments from Internet users regarding the new rules. Use this website to add your voice and let the FCC know what you think about net neutrality and the importance of keeping the Internet free and open. Let the FCC know that we want the Internet to help, rather than hurt, innovation, creativity, and freedom.
We don't want an Internet that is controlled by gatekeepers who can use their position to extract more and more tolls from those who seek to use it.
(Note: Net neutrality, would have just guaranteed that Internet companies are bailed-out as "crucial infrastructure." Their censorship of content would have been completely unaffected either way.)