The FCC’s controversial move to bring an end to net neutrality rules, set to begin over the next several days, may not signal the end of the fight over those rules at all. For those who may not be fully aware of the situation, net neutrality refers to the 2015 decision to reclassify ISPs under Title II regulations of the 1934 Telecommunications Act. In part, the rules came in response to a problem in the current spread of the U.S. internet access market. Many areas of the country still have virtually no competition to speak of, with regard to ISPs, forcing consumers to buy whatever is available in order to gain access. In the modern world, access to the net is increasingly important from both a standard of living perspective and actual use. The rules allowed service providers to be regulated, preventing those companies from blocking or throttling access based on the site a paying subscriber visits and furthermore preventing providers from charging more for access to any given site. In the shortest terms possible, that effectively forced the companies providing access to the internet into a neutral position with regard to what the web had to offer for users and how those users access the Internet.
Perhaps unsurprisingly, the rules don’t sit well with some companies and organizations. That seems to be particularly true of those that offer both internet access services and internet-based content – or that publicly plan to offer both over the coming months and years. Examples include AT&T, Comcast, and Verizon. Proponents of net neutrality argue that those companies have reasons for disliking net neutrality that primarily return to the fact that they are not allowed to block or slow down access to users trying to use competing services online while using connections established over those ISP networks. Worse still, it has been proposed that providers could slow or block access based on internal or executive ideals, political standings, or for any other reason, including the services provided by the ever-growing Internet of Things. It’s worth noting that several companies, including AT&T, have stated that net neutrality rules simply don’t offer any real protection to consumers and that they are a waste of time and money to maintain and enforce as a result. The FCC, meanwhile, insists that the Internet is not within its jurisdiction, refusing to concede that it is a telecommunications service. Instead, the agency’s officials and its chairman, Ajit Pai, claim that it is a means to deliver information and therefore falls under the jurisdiction of the FTC. Unfortunately, the FTC likely won’t have any rules to enforce, with regard to net neutrality, as the only regulations on the matter are set to be repealed by the middle of this month and are not written into law.
However, it is equally important to note that, before net neutrality went into effect, companies sometimes did end up paying service providers to not slow down or block their content when accessed over their respective networks. One example of that is a case in which Netflix actually paid Comcast to stop slowing down access to its services back in 2014. So, it shouldn’t be at all surprising that Netflix is among those companies vying for the continuation of net neutrality rules. In fact, Netflix is not alone in that fight. The Internet Association is a conglomeration of technology companies and entities which includes Netflix, Google, Facebook, Twitter, Amazon, and several others. The majority of these companies operate primarily online and, due to the actions of ISPs in the past and described above, the Association supports maintaining net neutrality. Moreover, although their collective efforts to lobby for the regulation in Washington ultimately seem to have failed, some telecommunications experts believe they stand a real chance of continuing to resist the end of net neutrality. One such expert and president of the Baller Stokes & Lide PC law firm, Jim Baller, says that the companies comprising the Internet Association have a history disrupting industries and the resources to mount a defensive. In addition to that, and despite that the net neutrality regulations appear certain to end at this point, it’s important to note that these companies are not likely to be completely powerless.
While the end of net neutrality does effectively allow ISPs to return to the above-mentioned practices, a greater focus on transparency, with regard to rules brought on by other regulations, mean that service providers will be required to disclose any and all blocking, prioritization, or throttling. That gives opponents of the move a chance to legally challenge those actions as anti-competitive. There is, of course, no guarantee that the challenges would be upheld or that any case brought against access providers would be successful. However, any challenges that are ultimately successful are, in turn, likely to refuel the debates about net neutrality and the more general classification of the Internet.
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