There Is No Loophole in the Net Neutrality RulesJune 13, 2017
One of the stranger ideas going around among the anti-net neutrality crowd (and in the Federal Communication Commission’s proposal to roll back the net neutrality rules) is the idea that the current rules, adopted by the previous FCC, contain a loophole that allows Internet Service Providers to block whatever websites they want to and generally avoid the rules, provided they use the right magic words–namely, that if they simply say ahead of time they intend to violate the rules, they’re no longer subject to them. This is wrong—the rules only cover broadband ISPs, which are defined quite precisely, but there’s no way for an ISP to continue offering what anyone would recognize as “internet access” without being covered by the rules.
Specifically, the rules apply to broadband internet access service—which, with the FCC’s usual flair for acronyms, is known as BIAS. BIAS is defined in relevant parts as “A mass-market retail service by wire or radio that provides the capability to transmit data to and receive data from all or substantially all Internet endpoints…This term also encompasses any service that the Commission finds to be providing a functional equivalent of the service described in the previous sentence, or that is used to evade the protections set forth in this Part.”
So—merely offering a service using the Internet Protocol, such as cable-like IPTV that is sold independently of broadband, or a device with built-in limited connectivity, such as an Internet-of-Things device with a built-in LTE radio that only connects to a specific server, is not the same thing as selling BIAS. Amazon doesn’t violate net neutrality if it sells you a Kindle that connects only to the Amazon ebook store. While net neutrality proponents are sensitive to the prospect of companies using various IP-based “managed services” to avoid net neutrality rules, no one has seriously suggested that the use of IP technology or equipment by itself should subject a service to net neutrality rules.
The question boils down to what an “ISP” would have to actually do to fall out of the BIAS definition, and thus the rules. That is, what does it take for an ISP to no longer actually offer to consumers “the capability to transmit data to and receive data from all or substantially all Internet endpoints” AND not to be a “functional equivalent” of such a service?
In the first place even the most aggressive proponents of this alleged loophole must concede that whatever a non-BIAS service is, it needs to be adequately and accurately described and marketed to consumers ahead of time—it is too much background to get into here, but this is because the common and statutory law on common carriage hinge on concepts like the “offer” and “holding out” to the public. A provider that held itself out as offering access to the “Internet,” but with a bunch of fine print, would run afoul of this. By contrast, a provider that sold, for example, a device that only offered mobile access to streaming music would likely be fine, since no consumer would confuse such a service with internet access.
(Additionally, regardless of how a service is described, any service that is the functional equivalent of internet access would be subject to the rules—so even if some service was “offered” the right way, if it nevertheless functioned as BIAS, it would be subject to the rules.)
In a concurring opinion denying a rehearing of the Order, Judges Srinivasan and Tatel offer two hypotheticals: One, an ISP offering only access to “family friendly” content, and two, an ISP offering access to some other kind of “edited service.” Both of these services, the judges hypothesized, may not be BIAS, and thus not subject to the rules. But, they add, “There is no need in this case to scrutinize the exact manner in which a broadband provider could render the FCC’s Order inapplicable by advertising to consumers that it offers an edited service rather than an unfiltered pathway,” because they view such offerings as unlikely, first because they would fail in the marketplace, and second because then such services might become liable for their users’ actions or for the internet content they choose to allow access to. Given the monopoly position of many broadband providers I wish I could share the judges’ feeling that services that may not be what consumers prefer would inevitably fail in the marketplace—but Public Knowledge has long observed that actively engaging in editing what content users can access online may be enough to make ISPs liable for that content. This is one of the fundamental policy rationales for common carriage. (And, of course, nothing stops ISPs from offering to their customers the ability to control internet content, even at the network level. For example an ISP that gives its users the option to block adult content does not violate the rules. User-initiated control is encouraged by the Order!)
Beyond that, though, it’s hard to analyze whether a given service is or is not BIAS without a lot of specific details. Do the services still offer access to “substantially all” of the internet? Then they’re still BIAS. Do they substitute for internet access? Then they’re functional equivalents, and still BIAS. Whatever these hypothetical services might look like, it’s not “internet access” as we know it—which is fine, since the Open Internet rules were never meant to prevent ISPs from experimenting with offering new kinds of non-BIAS services. At most we can say that a service that tried to offer to consumers the ability to access just Wikipedia, Club Penguin, and DirecTV Now might be able to—but this is quite far from an ISP being able to *block* DirecTV Now with impunity.
It is of course somewhat surreal to be having this debate when the current FCC appears hell-bent on eliminating the net neutrality protections Public Knowledge and so many other advocates and consumers have fought for for years. Nevertheless it is worth remembering that the current rules are very good and worth fighting to protect.
Image credit: Wikimedia Commons
About John Bergmayer
John Bergmayer is Legal Director at Public Knowledge, specializing in telecommunications, media, internet, and intellectual property issues. He advocates for the public interest before courts and policymakers, and works to make sure that all stakeholders — including ordinary citizens, artists, and technological innovators — have a say in shaping emerging digital policies.