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The Battle Over Net Neutrality

| February 27, 2015

By Steven J.J. Weisman
Legal Editor

weismanwriterWASHINGTON — No one seems to be neutral over net neutrality.  On February 26, the FCC approved new rules to classify and regulate broadband Internet service as a public utility by a vote of 3-2 strictly along party lines with the three Democratic commissioners voting in favor of the new rules and the two Republican commissioners voting against the proposal.

Not that any of the commissioners appeared to be against net neutrality.  Net neutrality is the name for the principle that all traffic on the Internet should be treated equally and that Internet Service Providers cannot charge more for higher-speed service and greater access which would limit the most effective use of the Internet to only those large companies that could afford the greater fees.  Under net neutrality, the Internet Service Providers could not speed up, slow down or block delivery of any content or service.   Those in favor of net neutrality fear giving Internet Service Providers too much power and control over how people surf the net.  Internet Service Providers have opposed net neutrality for years, arguing that they should be able to charge higher fees to some companies, such as Netflix to receive faster service.  However critics of the Internet Service providers’ proposals for tiered pricing say that it would stifle freedom of speech and equal access that is at the cornerstone of the Internet and, in effect, would result in only big companies that could afford larger fees having effective access to the Internet as a means of communication.

Net neutrality had been debated under the radar for years until Comedy Central’s John Oliver did a show that launched millions of emails to the FCC in support of net neutrality and the topic becoming one of greater public interest and discussion.  Listening to the groundswell of public support in favor of net neutrality, many opponents including prominent Republicans came on board in regard to protecting net neutrality and so the question shifted less from should there be net neutrality to  how should net neutrality best be achieved.  Chairman Wheeler himself was not an early proponent of net neutrality and had even floated a proposal last April that could have allowed the large Internet Service Providers to create special fast lane service for which they would be paid a premium.

Some legislators felt that net neutrality regulation was a solution looking for a problem as large Internet Service Providers backed off of plans to charge for different tiers of service.  For many Republicans it came down to a concern that heavy-handed regulation by the FCC would harm investment in the Internet and slow down innovation.  For many Democrats it came down to a concern that without regulation by the FCC, the large Internet Service Providers would revert back to their plan for higher rates for better service.

In January, Republican John Thune proposed net neutrality legislation that both banned priority-lane pricing and the blocking of web content.  His proposal would also have prohibited the FCC from regulating in this area.  Without much support his proposal died.

Part of the problem in the FCC issuing regulations to enforce net neutrality was that previously when the FCC attempted to regulate Internet Service Providers, the Federal Appeals Court ruled that the FCC did not have the authority to do so, however, the FCC does have the authority to regulate public utilities such as phone companies so the FCC’s most recent vote approved the reclassifying of the Internet as a public utility and therefore subject to FCC regulations.  This reclassification of the Internet as a public utility is sure to be the basis for court challenges by the Internet Service Providers to the new regulations.

Opponents of the FCC’s classifying the Internet as a utility are concerned that, by doing so, the FCC would have increased authority to regulate rates and take other actions that they believe would stifle investment by Internet Service Providers and slow innovation.  FCC Chairman Tom Wheeler has said that he is cognizant of the power that classifying the Internet as a utility would provide the FCC, but that he expects to use a “light touch” in regulating the Internet and would ignore powers that the FCC had that did not relate to broadband.  The devil is often in the details and it will be important to see whether a “light touch” is reflected in the specific regulations to implement the vote which will not be published for a few days and will not become effective for a few months.

Presently only Chile and the Netherlands have legislated net neutrality and while neither country’s Internet use is quite comparable to that in the United States, it is interesting to note that the same arguments against net neutrality here in the United States that it would stifle investment were made in the Netherlands and those predictions turned out to be false as the Dutch Internet Service Providers have continued to invest in the Internet Infrastructure.  In fact, Dutch average broadband speed is considerably higher than that provided by the Internet Service Providers here in the United States.

At a time when partisan politics may seem to some be at an all-time high with the two major political parties unable to agree on anything, it does seem that we should look at this glass as half full rather than half empty.  Largely influenced through the people making their views known to their government, both parties now agree on the principle of net neutrality.  Whether the route to go is through light-handed regulation as promised by Chairman Wheeler or whether the matter should have been dealt with by Congress is probably less important at this time than the fact that for once, both parties actually agreed on an important principle and that both political parties have gone on record as supporting the tremendous resource for economic growth and free speech that is the Internet.


Steven J.J. Weisman is a practicing attorney, legal editor for TALKERS magazine, a professor of Media Law at Bentley University in Waltham, Massachusetts and publisher of the website  He can be e-mailed at:  Steven J.J. Weisman is available as a guest to discuss legal matters and the subjects of identity theft and scams. Meet Steven J.J. Weisman at Talkers New York 2015 on Friday, June 12.  To register call, 413-565-5413. 

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Category: Legal