It’s been a year since the Obama-era net neutrality protections, which ensure all internet traffic is treated equally, were erased.
Although the doom-and-gloom prediction of a broken internet hasn’t yet come to pass, the future of the network is still very much in flux. At stake is who, if anyone, will police the internet to ensure that broadband companies aren’t abusing their power as gatekeepers. The 2015 rules adopted under FCC Chairman Tom Wheeler, a Democrat, prevented broadband providers from blocking or slowing access to the internet, or charging for faster access. The rules also firmly established the FCC’s authority as the “cop on the beat” when it comes to policing potential broadband abuses.
That all changed when FCC Chairman Ajit Pai, a Republican, took charge of the agency in 2017, threw out the old rules and stripped the FCC of its authority. Now, net neutrality supporters, broadband companies and the world await a federal appeals court decision expected this summer that will clarify whether the FCC’s repeal is even legal. Meanwhile, Democrats in Congress and supporters in states vow to keep the fight alive and are pushing for legislation that would reinstate net neutrality.
Even though the Republican-led Federal Communications Commission voted to repeal the rules in December 2017, it wasn’t until six months later on June 11, 2018, that the rules officially came off the books.
The fight continues as net neutrality activists plan protests Tuesday to mark the first anniversary. Senate Democrats are also trying to force a vote on the Save the Internet Act, which the House passed in April. The legislation would restore the FCC’s authority to police the internet and would restore the 2015 rules, including a ban on blocking, throttling and paid prioritization.
FCC Chairman Pai led the fight to repeal, claiming the rules were based on outdated, heavy-handed regulations, which stifled broadband investment. Since the repeal, Pai claims broadband investment has gone up.
“The latest evidence reaffirms that our policies are working,” he said in a statement the day before the anniversary of the repeal. “Today’s figures show that investment in our nation’s broadband networks rose in 2018 for a second straight year, with an estimated increase of $3 billion.”
But net neutrality supporters argue Pai’s claims are off base and that investment among the largest broadband companies has actually declined since the repeal.
“Verizon, Comcast and Charter invested less in their networks after the net neutrality rules were repealed,” said Gigi Sohn, an adviser to former Chairman Wheeler. “And AT&T recently announced that it would do the same.”
But worse than that, Sohn and other net neutrality supporters say Pai’s repeal effectively stripped the FCC of its role in protecting consumers and competition in the broadband market. And the consequences have been dire.
“As a result, a fire department has no recourse when Verizon throttles its broadband, and AT&T, T-Mobile and Sprint can sell precise geolocation information for its customers to data brokers who then sell them to bounty hunters without consequence,” Sohn said, referring to news last year that Verizon slowed the Santa Clara Fire Department’s service to a crawl while first responders were fighting wildfires in California and allegations that major wireless carriers have been selling customer location data.
If you still don’t feel like you understand what all the hubbub is about, have no fear. We’ve assembled this FAQ to put everything in plain English.
Net neutrality is the principle that all traffic on the internet should be treated equally, regardless of whether you’re checking Facebook, posting pictures to Instagram or streaming movies from Netflix or Amazon. It also means companies like AT&T, which bought Time Warner, or Comcast, which owns NBC Universal, can’t favor their own content over a competitor’s.
The regulation prohibited broadband providers from blocking or slowing traffic and banned them from offering so-called fast lanes to companies willing to pay extra to reach consumers more quickly than competitors. It also established a so-called “general conduct rule” that gave the FCC power to step in when it felt ISPs were doing something that hurt competition or ultimately hurt consumers.
To make sure the rules stood up to court challenges, the agency also put broadband in the same legal classification as the old-style telephone network, which gave the FCC more power to regulate it.
The stricter definition provoked a backlash from Republicans, who said the move was clumsy and blunt. They claim the Democrats’ bill to restore the rules will give the FCC too much authority to regulate ISPs.
FCC Chairman Ajit Pai, appointed by President Donald Trump, called the old rules “heavy handed” and “a mistake.” He’s also argued the rules deterred innovation because internet service providers had little incentive to improve the broadband network infrastructure. (You can read Pai’s op-ed on CNET here.) Pai claims he took the FCC back to a “light” regulatory approach, pleasing both Republicans and internet service providers.
Supporters of net neutrality say the internet as we know it may not exist much longer without the protections. Big tech companies, such as Google and Facebook, and internet luminaries, including Tim Berners-Lee, fall in that camp.
As a matter of fact, they were. AT&T as well as a couple of industry groups sued the government, arguing the FCC didn’t have the authority to reclassify broadband. But in 2016, the DC Circuit Court of Appeals upheld the rules, dealing the FCC a significant victory. The ruling made it clear the FCC could regulate broadband. AT&T tried to appeal the decision to the US Supreme Court. And Trump’s Department of Justice urged the court to take the case. But ultimately, the high court rejected the appeal. And that 2016 ruling stands.
The FCC, led by Pai, voted on Dec. 14, 2017, to repeal the 2015 net neutrality regulations. On June 11, 2018, the rules officially came off the books. As a consequence, today there aren’t rules that prevent broadband providers from slowing or blocking your access to the internet. And there’s nothing to stop these companies from favoring their own services over a competitor’s.
One of the most significant changes that’s often overlooked is that the FCC’s “Restoring Internet Freedom” order also stripped away the FCC’s authority to regulate broadband, handing it to the Federal Trade Commission.
The FTC is the new cop on the beat. It can take action against companies that violate contracts with consumers or that participate in anticompetitive and fraudulent activity. But critics, which include consumer advocates and Democrats such as Rep. Mike Doyle of Pennsylvania, complain the FTC doesn’t have the technical expertise to handle net neutrality complaints. They also claim the FTC lacks the FCC’s rule-making authority and it can take years to investigate complaints.
The one rule that was spared is the so-called “transparency rule,” which requires broadband providers to disclose how they manage their networks. The FCC now requires service providers to commit to disclosing when and under what circumstances they block or slow traffic, as well as if and when they offer paid priority services.
More than 22 million comments were filed with the FCC when the agency was considering repealing the 2015 rules. That was a record. But analysis of the comments showed that an overwhelming number of them were duplicates or submitted by automated bots. Roughly 2 million of the 22 million comments submitted used stolen identities. About half a million were sent from Russian email addresses.
Then there was the controversy over a supposed cyberattack on the comment system that temporarily shut down the platform on the same day thousands of net neutrality supporters responded to comedian John Oliver’s call to flood the agency with comments.
That “cyberattack” didn’t happen. The FCC’s inspector general reported in August last year that the FCC had misled Congress and the public when it said the outage in May 2017 was the result of a cyberattack. Instead, the IG suggested the outage occurred because the agency hadn’t prepared its website for a flood of visitors.
There are also a number of states, such as California and Washington, that have passed their own laws governing an open internet. Several other states, including New York, are considering similar legislation.
California’s law is based on the 2015 protections, but it goes further. It also outlaws some zero-rating offers, such as AT&T’s, which exempts its own streaming services from its wireless customers’ data caps. The law also applies the net neutrality rules to so-called “interconnection” deals between network operators, something the FCC’s 2015 rules didn’t explicitly do.
The FCC and Department of Justice have questioned the states’ right to enact their own net neutrality laws.The FCC actually included a provision in the “Restoring Internet Freedom” order, which pre-empts states from creating their own regulations. The Justice Department has filed lawsuits against some states, including California.
The new law was supposed to take effect Jan. 1. But last fall, the state struck a deal with the Justice Department to temporarily not enforce the new law until a lawsuit challenging the FCC’s repeal of the federal regulations is resolved.
The repeal of the FCC’s net neutrality rules was a big change in policy. But for most people, things haven’t really changed.
Over time, though, they could. Whether you think the changes will be for better or worse depends on whom you believe.
Pai and many Republicans say freeing up broadband providers from onerous and outdated regulation will let them invest more in their networks.
Net neutrality supporters, including Democrats like Rep. Mike Doyle of Pennsylvania and Sen. Ed Markey of Massachusetts, consumer advocacy groups, civil rights organizations and technology companies like Google and Mozilla say that repealing the 2015 rules and stripping the FCC of its authority will lead to broadband companies controlling more of your internet experience. This may lead to higher prices.
The US Federal Appeals Court for the DC Circuit in February heard oral arguments in the case challenging the FCC’s repeal of the 2015 rules.
Two of the big questions being asked in this lawsuit are whether the FCC had sufficient reason to change the classification of broadband so soon after the 2015 rules were adopted and whether the agency has the right to pre-empt states, like California, from adopting their own net neutrality laws.
As mentioned, California struck a deal with the Justice Department in October that it wouldn’t enforce its net neutrality law until the lawsuit in the DC Circuit, challenging the agency’s repeal, is resolved.
A decision in the case is expected sometime this summer.
Democrats and Republicans agree Congress should ultimately step in to end the regulatory ping-ponging that has been going on between Democrats and Republicans when they control the commission.
But that’s where the agreement ends. Democrats in the House passed the Save the Internet Act, which would essentially reinstate the 2015 order and once again make the FCC the agency in charge of policing broadband. But Republican Senate majority leader Mitch McConnell has blocked it from a vote.
Republicans oppose the bill, saying they are still worried that the FCC will have too much control over the internet. And they’re pushing for a bipartisan compromise.
While it’s clear the bill would have an uphill battle in the Senate, which is controlled by Republicans, Democrats were able to pass a Congressional Review Act resolution in the Senate last year that would’ve repealed the FCC’s order to dismantle the 2015 rules. But it’s unlikely any Republicans will defect again to pass this legislation, even if Democrats succeed in getting it to the floor of the Senate.
If it passes both houses of Congress, it still has to be signed into law by Trump. And White House advisors have already said they are advising the president to veto it.
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