Is this net neutrality issue very similar to the one that happened in 2015 or are there different factors being threatened?
The current net neutrality debate is an extension of the same net neutrality debate we’ve been having for years. The very short recent history of net neutrality looks something like this: In 2010, the Federal Communications Commission (a government agency that has the authority to regulate communications, such as radio and telephone networks) passed rules preventing Internet service providers from discriminating against or blocking websites that refused to pay for access to end users. In 2014, in response to a lawsuit Verizon filed challenging these rules, a federal court held that the rules weren’t valid because FCC didn’t show that it had the authority to enact rules limiting what ISPs can do to particular Internet traffic. In 2015, after over a year of debate about what the FCC should do next, the FCC enacted even stronger rules than those it passed in 2010, relying on a different source of authority to overcome the legal problem with its 2010 rules. In 2016, a federal court upheld these new net neutrality rules. Today, under new leadership, the FCC wants to undo the rules it put in place in 2015 and basically get rid of net neutrality rules altogether, allowing ISPs to charge websites to communicate with ISP customers and block access to websites that don’t pay. So, in 2015, we were arguing about whether the FCC should put in place weak rules or strong rules (it ended up choosing strong rules), and today, we are arguing about whether the FCC should get rid of those strong rules and instead have basically no rules at all.
It’s the same policy issue, but the positions are reversed — instead of trying to enact rules that protect consumers, the FCC is trying to take those rules down. The rhetoric has changed a lot though: in 2015 most of the big ISPs argued that they should have the right to throttle traffic and charge for fast lanes, but this time around they’re all saying they believe in core net neutrality principles, just not how the FCC has implemented them under Title II.
Comcast and others have even suggested that what we really need is a new net neutrality law passed in Congress, which is very well-intentioned and completely naive because our current Congress can’t pass a bag of M&Ms, let alone a sweeping piece of internet regulation.
This change in tone is probably because most consumers really distrust their ISPs, and net neutrality rules are really popular. So the ISPs are all trying to thread the needle of saying they want to abide by the rules without actually having rules — FCC Chairman Ajit Pai has proposed that every ISP simply promise to uphold net neutrality principles in their terms of service agreements, for example.
It all strikes me as exceedingly silly, like something stoned college freshman would talk about late at night: how can we have laws without really having laws, man? It’s funny, but it’s not any way to make policy around something as important to our lives and economy as internet access.
What is going on today at the FCC is directly related to what happened in 2015. After nearly a year of public comment (with nearly 4 million comments filed) and deliberation, the FCC in 2015 adopted the strongest-ever net neutrality rules grounded in the strongest legal authority (Title II of the Communications Act of 1934). These rules prohibit Internet Service Providers (ISPs) from discriminating against or favoring any content, service or applications. A federal court in Washington, DC upheld these rules specifically because they were grounded in the strongest legal authority
The Trump FCC has started a proceeding to repeal the 2015 rules and reverse the determination that placed ISPs under Title II. Nobody is asking for these changes other than the ISPs themselves – Comcast, AT&T, Verizon and Charter. In fact, a poll released yesterday showed that nearly 80% of Americans support the 2015 rules.
What is being threatened by the FCC’s current actions are the rules that the public fought so hard to obtain in 2015 – rules that are both popular and effective and under which ISPs continue to make huge profits and investments.
The issue is the same in that the underlying protections that all of us advocated for (that are now law) are under threat of being removed.
In 2015, the FCC set out to resolve two major issues. The first issue was what should network neutrality rules look like and what activities by ISPs will they cover. The second issue was what is the legal status of broadband companies since they have changed dramatically from the 90s when the Communications Act was originally passed (this is commonly referred to the Title I vs. Title II of the Communications Act issue). Title I of the Communications Act was originally designed for a time when your ISP was also your edge service provider (for those of us old enough to remember, think AOL/Prodigy times). Title II of the Communications Act applies to services that solely transit information (also referred to as common carriers), which back in the day was really just telephone service before broadband became what it is today. The final decision by the FCC was to declare broadband as Title II common carriers and to institute network neutrality rules for them based on their legal status.
Today, the new FCC Chairman Ajit Pai has made it clear he does not think broadband service is a common carrier service. As a result, his plan opens the door to allow ISPs to block websites, throttle services, and outright discriminate between services all in the name of “innovation.” This time, the threat is coming from a federal agency whose original job is to protect the public interest and it is being done in concert with companies like Comcast, AT&T, and Verizon, who stand to gain the most from being freed of any obligation to treat Internet traffic neutrally.
A little legal background may be in order here. ISPs keep trying to argue that they should be seen as a “website” rather than what they really are, a telecommunications service. They want that because then they won’t have to abide by net neutrality rules since the federal courts have ruled that net neutrality only applies to telecommunications services. No one thinks ISPs are websites, yet even the current FCC is trying to argue that ISPs are websites so that they can help ISPs slash net neutrality rules.
In 2015, the last FCC under a different chairman did the right thing after we helped send 4 million comments to the FCC saying that we want the most legally defensible way to protect net neutrality. They then changed the way they classify broadband Internet from an “information service” (like a website or a television channel==obviously false) to a “telecommunications service” (like landline telephone==obviously true). To take away net neutrality, ISPs are back arguing that they are more like websites than telephone systems, and the new FCC Chairman is so closely tied to the industry that he thinks their argument makes sense. That’s how corrupt this whole debate has gotten in D.C.
So, yes, this is similar to what was at stake in 2015. ISPs like Comcast are still trying to get powers to throttle the Internet so they can charge special fees. We are now defending the only legally defensible rules guaranteeing net neutrality, which millions of Internet users fought for and won in 2015.