The Battleground of Net Neutrality

October 25, 2019

            Since the FCC repealed Obama-era net neutrality rules, the topic has been one of fervent debate.  The 2015 rules specifically prohibited three activities by ISPs: outright blocking of content, throttling (or increasing the load times) of content, and creating “fast lanes” (decreasing the load times) of content.  The now-repealed 2015 guidelines were a vital cornerstone of internet speech to some, but an unwieldy shackle on the free market to others.  In fact, during the comment session for the repeal, many took to the internet to let their voices be heard, but shortly found the comment section removed due to a “DDOS attack” that the FCC later revealed to be fabricated by the FCC themselves.This resistance against the net neutrality repeal continued after the repeal, when California and a few other states passed their own state wide net neutrality laws, prohibiting the same activity the 2015 rule once did. In response, the FCC issued a Preemption Directive, which would have barred states from imposing their own net neutrality laws.  Recently the D.C. Circuit Appeals Court overturned that directive, holding that while the FCC did have the power to overturn net neutrality, it does not have the ability to prohibit states from legislating on the matter.

           For many net neutrality proponents, the D.C. Appellate Court’s decision was a hollow victory in the battle for internet freedom. That feeling of bitter sweetness was given form in a scathing concurrence by Judge Patricia Millet.  In a concurrence that agreed with the majority opinion, but appeared to fervently disagree with its implications, Judge Millett expressed deep apprehension towards potential results of allowing the FCC to repeal Net Neutrality. Voicing concern that the  result is “unhinged from the realities of modern broadband service,” Judge Millett emphasized that the case the majority relied on was simply of a different technological era of “iPods, AOL and Razer flip phones.” In that past case , National Cable & Telecommunications vs. Brand X Internet services, the Supreme Court held that the FCC could only minimally regulate internet services because they were in large part valued for “information services” such as private email, and webpage development. However, Millett argues, “that was then, and this is now.” She reasons, the value of today’s internet’s to customers is dominated by access to third party content.  Consumers now value speedy access to private content more than an ISP-provided email account. As a result, Millett appears to advocate for re-classification of internet services as “telecommunications services” which would then be subject to ostensibly greater regulation, with “public interest” as a driving force.

            Judge Millett’s concurrence hones in on the crux of contemporary net neutrality debate: the push-pull dynamic between public interest and the free market.  As a society, are we better served by the government or market forces influencing the modern internet? On one hand, allowing the government to enforce ISP impartiality when it comes to how content is delivered would allow customers equal access to the internet in its entirety. On the other, allowing ISPs to determine how content is served to customers may open doors for more customer-friendly pricing schemes or other innovation.  Perhaps the most persuasive argument in favor of net neutrality is public safety. For example, firefighters reported Verizon throttling their devices’ connections mid-operation during the Camp Fire last year.  The D.C. Circuit took note, stating “[t]he Commission’s disregard of its duty to analyze the impact of the 2018 Order on public safety renders its decision arbitrary and capricious.”

            With the Court expressing concern with the FCC’s reasoning behind their 2018 Order repealing net neutrality, perhaps the decision to allow states to “experiment” with their own laws is a positive outcome. Five states–California, New Jersey, Oregon, Vermont, and Washington state–have enacted their own net neutrality legislation. These resolutions largely mirror the 2015 rule, prohibiting ISPs from engaging in paid prioritization of content, or throttling websites and creating fast lanes for others. While the D.C. Circuit’s decision is almost assuredly not the final word in this matter, it has laid the groundwork for a nationwide experiment. By allowing states to legislate net neutrality for their citizens, we will able to observe the effects of both hands-off and hands-on regulation on the matter. States such as California and Washington will serve as one group, representing the effects of public-interest minded enforcement of net neutrality. States that abstain from passing net neutrality legislation will serve as another group, exemplifying how laissez-faire regulation on the subject plays out in practice. Once the dust settles, American citizens will be able to shape internet policy in a more informed way, with full knowledge of how each regulatory route can affect their day-to-day internet use.

Stefan Maletic

October 25, 2019