Network Neutrality

If the Federal Communications Commission does dismantle Title II network neutrality rules, what happens next? Consumer advocates and other proponents could launch a legal challenge, tying the issue up in court for years -- perhaps until after the current administration. Or companies could push Congress to pass its own law and take the power out of the commission.

But here's where things get tricky. Court cases can drag on and legislation is certain to involve compromises. Denelle Dixon, chief business and legal officer for Mozilla, says the fight to keep the internet free and open is too important to not push forward. But she admits it may not turn out exactly as she would like. "Legislation by its nature is complicated and never plays out the way you expect," she said. "One side doesn't always win...In a perfect world, we'd like to see the rules that exist today remain. But the reality is that we have an FCC chairman who is set on dismantling them and at some point we need to engage with legislators."

On July 17, a group opposed to the rules said its analysis had uncovered 1.3 million likely fake pro-net neutrality comments from addresses in France, Russia and Germany "almost exclusively" from the e-mail domains Pornhub.com and Hurra.de "The gaming of the comment submission process continues and in fact appears to have reached epidemic proportions," Peter Flaherty, president of the nonprofit conservative watchdog group National Legal and Policy Center, said in a statement. "At this point, the deception appears to be so massive that the comment process has been rendered unmanageable and meaningless."

[Commentary] There are differences between what tech giants (Google, Facebook, Amazon, Netflix) of the internet and their smaller counterparts are saying. More importantly, there’s a difference in how the most powerful internet companies are incentivized to act. It’s a fine line, but an important distinction for those who want the existing net-neutrality rules to stay. The protests from big tech companies themselves were more subdued than past demonstrations, and few of the major companies involved explicitly demanded the legally enforceable, Title II-based net-neutrality rules stay in place today. And that leaves the major tech firms a small but significant bit of wiggle room.

Tech giants' relatively meager actions on July 12 serve as a reminder: Net neutrality is about the small, not the big. If the (still mostly hypothetical) fears of Title II advocates come true, and ISPs are able to set tolls for access to better quality, the companies with better funding will more easily be able to pay them.

[Commentary] Americans’ information independence is under attack, whether it’s the repeal of network neutrality or the repeal of broadband privacy protections. The Federal Communications Commission needs to listen and serve the American people, not special interests. I am committed to protecting both your privacy and the internet as we know it. A free and open internet is essential to our democracy, economy and modern way of life.

[Commentary] I support network neutrality and the rules as the Obama Federal Communications Commission Democratic majority promulgated. But I recognize that there may be benefits to consumers, particularly low-income consumers and the public interest that might warrant exemptions to strict network neutrality rules. We would all be better off if Congress could agree on what those rules and exceptions should look like, but repealing Title II protections will not help us get there.

Much like you have seen the FCC privacy rules replaced with nothing, having polarized the parties, and made deliberation toward compromise more difficult, the repeal of Title II rules will do the same thing....Repealing network neutrality protections without replacing them with something that has bipartisan support at the same time will poison the environment for potential philosophical resolution and compromise to the detriment of network operators, internet innovators and consumers alike.

[Daniel Sepulveda served as ambassador, deputy assistant secretary, and coordinator for communications and information policy at the State Department from 2013 through Jan. 20, 2017]

Banning all paid prioritization will not result in an internet that drives innovation and consumer welfare, an internet that has never treated content neutrally anyway. That was one of the main points from the Information Technology and Innovation Foundation, which filed comments on the deadline for initial comments in the Federal Communications Commission's open Internet proposal.

ITIF said that it agreed that the FCC needed to be a cop on the paid prioritization beat but on a case-by-case basis. "[T]he Internet has never been 'neutral,'” ITIF told the FCC. "[D]iscrimination can be pro-innovation and pro-consumer or anti-innovation and anti-consumer." ISPs have similarly signaled that while they pledge not to block or throttle traffic, paid prioritization can be a service differentiator and a pro-consumer business model. ITIF agrees. "Broad dictates like 'all prioritization should be banned' or 'all prioritization should be allowed' are not helpful to achieving the kind of Internet that will be central to driving innovation and consumer welfare in the decades ahead."

The people’s verdict is in. A slew of recent polls make clear that most Americans, nearly 80%, support keeping the network neutrality rules that are the foundation of an open internet. These are the rules passed by the Federal Communications Commission in 2015, under the leadership of then-chairman Tom Wheeler, that keep the big Internet Service Providers (ISPs) like Comcast, AT&T, and Verizon from determining your internet experience, because they’d rather do that themselves than let you do it. Net neutrality rules prohibit blocking or throttling content. And they keep ISPs from favoring their affiliates, corporate friends, and those who can afford sky-high broadband prices with fast lanes on the net, while the rest of us are told to travel in the slow lane.

The Federal Communications Commission’s 2015 Open Internet Order follows years of advocacy to implement network neutrality rules, which appears to contravene Congress’ intention that the internet be free of regulation and the people’s will for a free market for broadband. The application of the Title II regulatory framework to the internet has harmed consumers and innovators. While proponents claim they want competition in the broadband market, the objective of Title II is to create a system of government-owned broadband networks under FCC control and to significantly reduce, if not eliminate, private-sector provision.

A group of small and mid-sized manufacturers of broadband network products has told the Federal Communications Commission to roll back Title II, just one in a wave of comments coming in to the FCC by July 17, the deadline for initial comments in FCC Chairman Ajit Pai's net neutrality proposal. The makers of modems and routers, switching equipment and semiconductors—which included Blonder Tongue Labs, FiberSource, Infinera and more than a dozen others—say their input should get "special weight" since the D.C. appeals court that has principal jurisdiction over FCC issues has said those who sell goods and services have an "incentive to make a completely unbiased judgment on the matter." Their judgment, they told the FCC, is that there is a "serious and substantial risk" that continuing to regulate broadband under Title II "will have a negative impact on the economic well-being of the numerous small and medium size companies that make hardware and software used to provide Internet services."

[Commentary] At bottom, network neutrality is nothing more than good old-fashioned rate regulation. Accordingly, if you are going to impose rate regulation, then Title II prescribes certain rules you must adhere to in order to ensure that the regulated firms’ Fifth Amendment due process rights are not violated....At stake...is whether an administrative agency should be permitted to re-write the law—especially when it does so simply to fit a political agenda. According to the D.C. Circuit in United States Telecom v. FCC, the answer appears to be “yes.” Citing the Supreme Court’s seminal case in Brand X, the D.C. Circuit found in USTelecom that the FCC had wide—nearly unbounded—latitude to interpret the Communications Act and not only upheld the agency’s decision to reclassify but also upheld the agency’s ability to “tailor” how it chose to implement Title II. In so doing, the D.C. Circuit—rather by design or by omission—has taken Chevron deference to the extreme.

USTelecom has greatly expanded the commission’s authority to set the rates, terms and conditions of private actors well beyond its statutory mandate. Accordingly, the statutory construct of “Title II” now has no meaning; it is some bizarre legal hybrid that the FCC has made up and the D.C. Circuit has sanctioned. For those who care deeply about due process and the rule of law, the precedent set by the D.C. Circuit in USTelecom is deeply troubling and is a case that we will likely have to deal with its aftermath for years to come.

[Lawrence J. Spiwak is president of the Phoenix Center for Advanced Legal & Economic Public Policy Studies.]