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WHAT’S NET NEUTRALITY?
Net neutrality is the principle that individuals should be free to access all content and applications equally, regardless of the source, without Internet service providers discriminating against specific online services or websites. In other words, it is the principle that the company that connects you to the internet does not get to control what you do on the internet.
The FCC is now in the process of reviewing over 3.7 million comments and shaping new net neutrality rules. Advocates of strong open internet rules (like Public Knowledge) have urged the FCC to implement clear, bright line rules that prevent ISPs from blocking and discriminating against websites and other online services. These rules must be based in what is known as “Title II authority.” Doing so will significantly increase the likelihood that strong net neutrality rules will survive the expected court challenge.
WAIT, ISPs CAN BLOCK CONTENT?
While all the recent attention on net neutrality has largely kept ISP behavior in check, after the DC Circuit overturned net neutrality rules in January 2014 there have been no rules in place to prevent ISPs from blocking content.
Since the dawn of the internet, there has been a presumption among its creators that information that was transmitted was treated equally – similarly to the way voices traveled over phone lines (after all, the first internet transmission was over phone lines). This general admission, come-one-come-all quality was the foundation that allowed the web’s organic growth from a fringe service to the fundamental, worldwide communications service we know today.
But even as the information available online exploded exponentially, the companies that provided the internet access on-ramp consolidated into the small handful of giant service providers we know today. As power consolidated into the hands of a very few service providers, they realized they might have the freedom to prioritize and degrade certain types of content flow over the pipes they controlled.
As examples of this abuse began to surface, Americans asked the FCC to step in and codify the “presumption” of network neutrality into actual regulations to prevent the ISPs from engaging in preferential or discriminatory treatment for financial gain or just because they felt like it.
Building on a process dating back to the mid-2000s, the FCC enacted the Open Internet Order in 2010 in order to prevent large telecommunications firms like Verizon and Comcast from stifling competition and innovation online. The agency wrote in the Order that the net neutrality rules were intended to “preserve the Internet as an open platform enabling consumer choice, freedom of expression, end-user control, competition, and the freedom to innovate without permission.”
Without net neutrality rules in place, ISPs can prevent users from visiting some websites, provide slower speeds for services like Netflix and Hulu, or even redirect users from one website to a competing website. Net neutrality rules prevent this by requiring ISPs to connect users to all lawful content on the internet equally, without giving preferential treatment to certain sites or services.
In the absence of net neutrality, companies can buy priority access to ISP customers. Larger, wealthier companies like Google or Facebook can pay ISPs to provide faster, more reliable access to their websites than to potential competitors. This could deter innovative start-up services that are unable to purchase priority access from the ISPs. Also, if ISPs can charge online services to connect to consumers, consumers would ultimately bear these additional costs (for example, on their monthly Netflix bill or in the cost of products from a local online store).
In January 2014, as a result of a Verizon lawsuit, the DC District Court struck down the FCC’s net neutrality rules. While the Court made clear that the FCC has authority over internet access generally, it found that the open internet rules specifically were built on a flawed legal foundation. The decision left it open for the FCC to decide what to do next to reestablish net neutrality.
In April 2014, press reports leaked that the FCC had new net neutrality proposal. The proposal reportedly did prevent ISPs from blocking or discriminating against websites, but as part of the new rules, ISPs would be able to charge companies for preferential treatment if they deemed it "commercially reasonable." The discriminatory commercial reasonableness standard opened up the internet to have fast lanes for some online services and slow lanes for others, allowing ISPs to impose a new price of entry for online innovation. This leaked proposal resulted in siginicant public outcry from the public, policymakers, and members of the media.
At the FCC's Open Meeting in May 2014, the Commission introduced their proposal for net neutrality rules, which discuss the problems that occur when ISPs get to choose winners and losers online, but still allow for fast lanes and slow lanes online, and do not go far enough to establish meaningful net neutrality. The FCC accepted a first round of public comments through July 15, 2014 and a second round of public comments through September 15, 2014.
Millions of public comments called for Title II reclassification. In response, President Obama endorsed Title II for net neutrality in a video in November 2014, and FCC Chairman Tom Wheeler published an op-ed proposing Title II authority, including for the first time mobile broadband protections, in February 2015. The Commission will vote on the proposal on February 26, 2015.
In a historic vote, after an unprecedented outpouring of public support, the FCC voted to enact the strongest net neutrality rules in history on February 26th, 2015. By embracing its Title II authority and creating clear, bright line rules against blocking and discrimination, Chairman Wheeler and the FCC have earned a reputation as defenders of an Open Internet.
PK is fighting for Title II reclassification of internet access service to a telecommunications service, instead of the outdated current classification of an information service. This reclassification is the only way for the FCC to create strong net neutrality rules that allow customers to have a reasonable expectation of consistent, reliable, and nondiscriminatory services.
In our comments to the FCC, we explain why the Commission must protect a single, open, and neutral internet. That means that it should not create special wireless internet rules that turn wireless into a second class experience – especially because wireless connections disproportionately serve as the only link between traditionally underserved communities and the internet.
We also explain why the Commission’s proposed rules are so problematic. By relying on its Section 706 authority, the Commission is forced to choose between two options: create strong open internet rules that are likely to be struck down in court, or settle for weak net neutrality rules that may survive court challenge but will not actually protect an open internet. Neither of these options will work. That is why relying on Title II authority is so important.
The comments also highlight the important role that data caps play in the net neutrality debate. Fast lanes and slow lanes are one way to break the open internet, but capped lanes and uncapped lanes can achieve the same result. We have already seen Comcast, AT&T, and T-Mobile use data caps to insert themselves as gatekeepers of the internet. It is important for the FCC to recognize that discrimination by cap can be just as problematic as discrimination by speed.
To learn more:
View our net neutrality timeline.
Read our blog post about the FCC proposal entitled "How the FCC's Proposed Fast Lanes Would Actually Work".
Read the post "Throwing Shade at Title II with Forbearance Fearmongering," by PK's Harold Feld.
Read our latest blog post about what we can expect to happen next after the victorious February 26th vote.
Here are the PK experts on this issue: