Over the course of the last few years, net neutrality has become one of the most contentious issues that people know little about. On Thursday, the Federal Communications Commission (FCC) will vote to repeal the strong Title II regulations at its monthly meeting. The vote is controversial to say the least. Many major sites, including Reddit, Facebook, and Google have spoken out against the change. However, other experts support the change, arguing that it will help smaller broadband providers to grow and will allow a flexible framework for the internet of the future.
“In my view this is a really great moment for innovation, for consumers, and for freedom,” said FCC Commissioner Brendan Carr at a panel discussion hosted by the American Consumer Institute on Tuesday. “This two year experiment [of regulating the internet under the FCC] has seen investment in broadband decline, ISPs pull back on deployments and services kept on the shelf. All of this has harmed consumers.”
The publicity surrounding the net neutrality issue has diminished the ability of the FCC to act as an expert regulatory body.
“In my view the comment process has been subject to some distortion,” said Randolph May, founder of the Free State Foundation and former FCC general counsel. “The public’s participation is obviously welcomed and supported, but when we get into arguments about if 50,000 out of the 20 million comments filed are valid it disturbs me because ultimately it diminishes the idea of the expertise of the FCC.”
In fact, as Carr reminded, the net neutrality repeal is more akin to a return to business as usual than an entrance into a brave new world.
“We are getting back to the same regime that governed for 20 years, a regime that had robust consumer protections, a regime that solved online disputes and saw online service providers launch and thrive,” said Carr. “This is not some new radical free market approach.”
The Title II net neutrality regulations were passed two years ago in an attempt to make the internet more equitable by preventing blocking and throttling. This means that Internet Service Providers (ISPs), such as Comcast and AT&T, were banned from slowing down the speeds of certain types of connections and also from boosting connection speeds in other areas. For many consumers, this seemed like a basic protection of unimpeded access to media and information. However, the regulatory structures were put into place under the FCC’s Title II common carrier regulations, which were originally drafted for telephone monopolies in the 1930s.
Supporters of the move back to lighter-touch net neutrality rules argue that current rules both hamper development and diminish consumer protections. In part, this occurs because the Federal Trade Commission (FTC), which will take the lead on net neutrality protections after the repeal, lacks some of the consumer protection tools that the FCC has.
The Title II regulations have only ever affected ISPs, but attention has begun turning to the ability of edge providers, like Facebook and Google, to determine whether users are able to find a site in search results or block a site or article from a newsfeed. Just last week, Google announced it would block its YouTube service on Amazon devices. Supporters of the strong Title II regulations, like Sen. Ed Markey of Massachusetts and Rep. Anna Eshoo of California, argue that the FTC does not have the necessary capabilities to protect consumers when net neutrality rules are violated. InsideSources asked Markey and Eshoo last week whether they would support legislation to enforce net neutrality rules on edge providers, as well. They instead backed the FTC’s continued enforcement.
The current Title II structure has also led to a framework that focuses on rule-enforcement rather than building a system that understands the limitations of government regulations and strives to protect consumers while providing innovators room and incentive to grow.
“We have fallen into a European-style precautionary principle, where we are fearing things that aren’t happening,” said Shane Tews, a visiting fellow at the American Enterprise Institute. Tews explained that even some of the supposed “bright line” issues of net neutrality, including throttling, may in fact be necessary tools for the internet of the future.
“There is no busy signal on the internet,” said Tews, explaining that current laws prevented ISPs from blocking malicious traffic. “If you don’t have the ability to throttle or block, then you are lacking a means to shut down cyber security threats like the [Internet of Things] attack we saw last year.”
She described how, under current regulations, providers could see these types of malicious activity, but had to let the attacks “wash over” them. Meanwhile, some prioritization of internet access makes sense, Tews argued, particularly as medical devices are increasingly connected to the internet. Prioritization could mean that these devices or the navigation system of a self-driving car are given priority over downloading a movie.
Tews’ comments spoke of the needs of a new digital economy, one which has been developing at an incredibly rapid pace, demanding a high level of regulatory flexibility for the internet of the future.
“We can’t imagine where we are going to be, setting regulations in place ahead of time will be problematic for our innovative future,” agreed Katie McAuliffe, executive director of Digital Liberty. “This isn’t saying that someone shouldn’t be regulating conduct, but we don’t want to be in a setup where we are presuming harm before it happens.”
Given this level of innovation, the key thing is to retain an open internet which operates across state lines. This model is fundamentally different from that of utility companies, which have remained largely stagnant for decades and which are often subject to government regulations regarding prices and availability. To saddle the internet of the future with this type of regulation would stifle investment in innovation.
“The internet runs at lightning speeds. We have FCC policy moving at glacial speeds,” said Berin Szoka, president of TechFreedom, a tech think tank. “The trouble isn’t net neutrality–it’s concerns over regulation and FCC oversight.”
When the FCC was given regulatory control over internet service providers, it stopped slightly short of implementing full Title II control. However, this forbearance decision can be easily reversed, says Szoka, which would leave the internet of the future subject to regulations that would cripple innovation. He called on Congress to specifically limit the authority of the FCC in the future to return to this regulatory role. Without a congressional limit, he said, a new administration could reverse the policy again. For this reason, many supporters of the roll back of Title II have called on action from Congress to legislate net neutrality rules into law.
This is just the start of a long process. The foundations of the American legal system are found in British common law. What this means for the internet of the future has yet to be discovered. Now it is the role of the FTC to help with this process as regulation becomes necessary, says Steve Pociask, president and CEO of the American Consumer Institute.
“The point of the FTC was to give broad standards that they could apply case by case to build a common law over time,” he said. “No one wants to tie the agency’s hands, instead we should understand better how it works and ensure that it is building an effective common law. That approach will require a back and forth between plaintiffs and defendants over time.”
After long debate, that process is set to begin on Thursday.
