Could Democratic Control of the House Bring Back Net Neutrality?

February 15, 2019

The House Judiciary Subcommittee on Courts, Intellectual Property, and the Internet Chairman Henry Johnson has a lengthy history of supporting net neutrality. Unfortunately for Rep. Johnson, this decision was left in the hands of Federal Communications Commission Chairman Ajit Pai. In December 2017, the FCC voted to repeal Obama-era net neutrality rules, which officially took effect on June 11, 2018.

Network neutrality “prohibits the owner of a network that holds itself out to all-comers from discriminating against information by halting, slowing, or otherwise tampering with the transfer of any data.”  As it relates to the Internet, the “owners of a network” are Internet Service Providers (ISPs), which provide their customers with connectivity to the Internet.

Repealing net neutrality allows ISPs to institute “paid prioritization” programs where certain entities, such as social networks, can pay for better speeds compared to other Internet traffic. For example, Facebook might pay an ISP such as Spectrum a premium for priority speeds on Spectrum’s network, while YouTube declines to do so. This in turn would result in Spectrum’s internet customers being able to watch videos on Facebook with greater download speeds than on YouTube. While one might not have too much sympathy for Silicon Valley giants waging war on one another, the real losers in this equation are small businesses, who cannot compete with the big players when it comes to paid prioritization. The impacts of widespread paid prioritization on innovation could be chilling.

While one might not have too much sympathy for Silicon Valley giants waging war on one another, the real losers in this equation are small businesses, who cannot compete with the big players when it comes to paid prioritization.

Earlier this week, the Senate Judiciary Committee established a subcommittee on intellectual property chaired by North Carolina Senator Thom Tillis. Hopefully that subcommittee, which shares Intellectual Property legislative oversight with the Subcommittee on Courts, Intellectual Property, and the Internet, will support the efforts of its House counterpart to reinstate net neutrality. Given Tillis’ voting record on the topic, though, net neutrality might not be on the subcommittee’s radar as far as a way to advance the development intellectual property rights.

It is worth noting how important net neutrality is to innovation, and thus our intellectual property law should be very concerned with a free and open Internet. As ISPs venture further into producing their own content, the rights of other content producers to distribute their products and services across the Internet could be severely hindered.

Beyond safeguarding innovation, we should also consider public opinion when crafting policy. The majority of 20 million public comments made in advance of the FCC’s decision advocated against repealing net neutrality.

There is also currently ongoing litigation in the D.C. Circuit Court of Appeals to determine whether or not the FCC has “abandoned its mandate to ensure a free and open Internet.”

It looks like, despite Ajit Pai’s actions, the battle for net neutrality may be far from over. With these ongoing legal developments, and the establishment of a Senate Judiciary subcommittee focused on safeguarding innovation, perhaps federal policy will shift more towards valuing the free exchange of information on the Internet.

Alec Mercolino, 8 February 2019