What it means in the net neutrality timeline

In a show of where they stand on net neutrality, 49 Democrats and three Republicans joined together for a simple majority in the Senate to pass a resolution to overturn the Federal Communications Commission’s repeal of net neutrality, a policy engendered in the 2015 Open Internet Order. The resolution was in the form of a Congressional Review Act, a legislative tool where Congress can reverse regulations created by federal agencies by a simple majority vote.

The CRA was brought by Sen. Edward Markey, D-Mass. “Today, the Senate took the most important vote on the Internet in its history, and the American people won,” said Senator Markey, “And now, House Republicans will have a choice – be on the side of the American people or hold hands with President Trump and his big corporate cronies.”

The symbolic vote to pass the CRA came after FCC Chairman Ajit Pai and two of the commissioners killed net neutrality in December 2017 with the Restoring Internet Freedom Order. June 11 is the kill date for net neutrality.

“Now, on June 11, these unnecessary and harmful Internet regulations will be repealed and the bipartisan, light-touch approach that served the online world well for nearly 20 years will be restored,” said Pai. “We look forward to working closely with the FTC to safeguard a free and open Internet.”

Former President Barack Obama’s signature Internet piece banned three practices: blocking, throttling, and paid prioritization. The FCC and the administration believed that these practices harm the open Internet. At the time, the FCC felt that “an open internet promotes innovation, competition, free expression, and infrastructure deployment.”

For the survival of net neutrality, the Senate vote must be backed by a House vote, which is unlikely. If by some chance it did clear the House, then it would be up to President Trump to approve it. During his campaign, Trump opposed the Open Internet Order, so it seems even more unlikely to successfully pass his desk.

The CRA’s primary outcome is that it will make clear who supports net neutrality and who opposes it come election time. Democrats are hoping to drum up even more support for net neutrality, forcing an exodus of Republicans who opposed the policy and gaining control of both the Senate and House.

In an early December 2017 survey by the School of Public Policy, the University of Maryland, 83 percent of Americans opposed killing net neutrality. A surprising 75 percent of Republicans opposed it.

Aside from the political machinations, what exactly is net neutrality? Merriam-Webster defines it as being “the idea, principle, or requirement that Internet service providers should or must treat all Internet data as the same regardless of its kind, source, or destination.”

The 2015 Open Internet Order spelled out bright-line rules that providers must follow. The Order reads, in part:

1. No Blocking lawful content, applications, services or non-harmful devices.

2. No Throttling by impairing or degrading lawful Internet traffic on the basis of Internet content, application or service or use of a non-harmful device.

3. No engaging in paid prioritization. “Paid prioritization” refers to the management of a broadband provider’s network to directly or indirectly favor some traffic over other traffic.

The concept of net neutrality goes back more than 50 years ago when the FCC announced its first Computer Inquiry in 1966. Innovations in computer technologies forced the question: at what point and in what form does the FCC need to regulate these quickly converging technologies of 1) computers attached to telecommunications networks, and 2) computers being used as powerful processing units?

To back up, the FCC is tasked with overseeing information in transit while the FTC is tasked with monitoring trade. The distinction is an important one: the FCC is “charged with regulating interstate and international communications by radio, television, wire, satellite, and cable.” The FTC’s mission is to “protect consumers by preventing anticompetitive, deceptive and unfair business practices,” among other things.

AT&T was using its position to not only restrict innovations that could be used with its network but also to promote their own data services. The FCC decided that the two services, telecommunications (to move information), and information services (to process and store information), needed to maintain a separation as to avoid conflicts. Thus, the FCC would rule over the telecommunication functions of AT&T while the FTC would monitor information services.

The goal of the Telecommunications Act of 1996 was to encourage entrepreneurs to engage in the communications business and expand competition. Twenty years later, the Brookings Institute, a non-partisan think-tank, reviewed the results of the Act. The Institute found that “metrics do not demonstrate that the Telecommunications Act of 1996 was an unqualified success, but they are evidence of the law’s real economic and consumer benefits.”

In March 2002, the FCC adopted a rule that established cable Internet services as information services and not telecommunications services, which meant that cable Internet services were not subject to the FCC’s oversight. The rule meant that cable providers did not have to sell access to their systems to rivals.

The Telecommunications Act of 1996 imposes strict regulations on telecommunication services companies and provides for special taxes. Most importantly, in this case, providers of telecommunication services are required to sell access to their networks to rivals.

Of course, a lawsuit ensued that wound up on the Supreme Court’s docket as National Cable and Telecommunications Association v. Brand X Internet Services, the case that came to be known as Brand X. In 2005, the SC handed down its ruling that the Communications Act of 1934 was ambiguous on this point, and therefore it was within the FCC’s purview to interpret the applicable law.

Justice Antonin Scalia’s dissent called the ruling “an implausible reading of the statute, and … exceeded the authority given it by Congress.”

The effect of the SC’s opinion was that the FCC’s original ruling remained intact.

Next came Comcast’s throttling of BitTorrent in 2007. The FCC told Comcast to quit throttling BitTorrent; Comcast refused and filed suit. Three years later, the FCC got slapped. The U.S. Court of Appeals for the D.C. Circuit found that the FCC did not have the authority to stop Comcast from slowing down BitTorrent’s traffic. It was a bitter pill for the agency that had given up the option of overseeing broadband companies.

Finally, we arrive in February 2015. The FCC, under an Obama-appointed chairman, Thomas Edgar Wheeler, announced the latest ruling designed to launch net neutrality. With the Open Internet Order, the FCC reclassified broadband Internet access service as a telecommunications service, citing the SC’s ruling in Brand X that since the law was ambiguous, the FCC could interpret it as they saw fit.

Conclusion

The evolution of the net neutrality has been long and seemingly tortuous. This FCC’s latest movement to rid us of net neutrality and the Senate’s vote to restore net neutrality is just the latest salvos in a decades-long battle. At some point, the wrinkles will be ironed out. In the meantime, we travel a bumpy road.