When you get down to it, the biggest question dividing the two sides of the net neutrality debate is a simple, yet politicized one: Who do you trust less, big government or big corporations?
To FCC Chairman Pai and his supporters, the 2015 “Open Internet Order” was a power grab by the Obama-era federal government made in the name of protecting competition. To net neutrality advocates, the current FCC’s plan to repeal the 2015 order and essentially roll back net neutrality protections by more than a decade, is further evidence of the corrupting influence of corporate money on the Trump administration.
Both sides accuse the other of acting as a “gatekeeper” wielding excessive power over how the internet works and who it serves. To free-market hawks, the 2015 regulations required ISPs to get approval from FCC gatekeepers before experimenting with new broadband technologies, a process they say could take years. To net neutrality activists, the real gatekeepers are a handful of huge ISPs which threaten to control what content we see online and at what price.
Daniel Lyons is an associate professor at the Boston College Law School specializing in telecommunications, property, and administrative law. He told Seeker that these two opposing visions of the broadband universe are reflected in the conflicting policies of the Obama-era FCC and the Trump-era FCC.
“The 2015 rules basically said, internet companies have to provide the service they provide now and they can’t change it, and we’re going to use the force of law to make sure they don’t change it,” said Lyons. “The current FCC thinks exactly the opposite. We should let companies experiment and innovate, and if there’s a particular innovation that causes consumer harm, we’ll address that when it happens. It’s prophylactic rules versus punishing actual bad conduct.”
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The 2015 regulations made it clear what kind of tactics ISPs could definitely not use —blocking, throttling, and paid prioritization. It also included a provision called the “general conduct standard” that left the door open to the FCC taking action against anything that it deemed to “unreasonably interfere or unreasonably disadvantage” a consumer’s ability to access the sites and services they want online.
Brent Skorup of the free-market Mercatus Center at George Mason University told Seeker that the overreaching vagueness of the general conduct standard placed an undue burden on ISPs to prove that any new services provided a benefit to consumers.
“My view is that the burden should be on the government to show some kind of harm,” said Skorup.
Also central to the net neutrality debate is the question of which government agency is best-equipped to prevent ISPs from abusing their market power and to protect consumer privacy online. A side effect of the 2015 reclassification of ISPs as Title II “common carriers” was that it stripped the Federal Trade Commission of its antitrust and privacy authority. That’s because by law the FTC can’t regulate Title II utilities.
“So now there’s this big gaping hole in privacy and antitrust law that broadband providers aren’t subject to any rules,” said Lyons. “Repealing [the 2015 order] would restore the FTC’s jurisdiction and bring back our normal antitrust cop on the beat.”
Not surprisingly, net neutrality supporters disagree. Ferras Vinh, an attorney with the Center for Democracy & Technology’s Open Internet Project, told Seeker the FTC doesn’t have the network engineering expertise or the rulemaking authority to keep big ISPs in check.
“Also, the FTC can only pursue violations of privacy or net neutrality after the fact,” said Vinh. “Given how many subscribers each of the big ISPs have, it means that millions of people are going to be subject to privacy harms before the FTC takes action.”
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But perhaps the biggest issue dividing the two sides of the net neutrality debate is what will happen to the internet if the FCC votes to approve Chairman Pai’s repeal of nearly all existing net neutrality rules. At net neutrality rallies across the country, supporters of the existing strong regulations have been marching to “save the internet” from certain ruin by greedy ISPs.
“What I’m trying to preserve is the ability for the internet to continue to be a place of opportunity not only for Netflix, but for the ‘next guy,’ and for political organizing and community organizing,” said McSherry from EFF. “What I’m particularly trying to prevent is a situation that we haven’t had before, where your ISP, the entity that’s supposed to provide access to the infrastructure of the internet, becomes a gatekeeper. That’s what we have to push back against very, very hard.”
Skorup at the Mercatus Center is skeptical of the sky-is-falling scenario that the FCC rule change will usher in the end of the internet as we know it.
“I fully expect the internet will look much the same for everyone in the foreseeable future,” said Skorup, who sees the FCC’s move as simply a return to the highly successful regulatory framework that allowed the internet to flourish prior to 2015.
Vinh at the Center for Democracy & Technology agreed with Skorup, just not for the same reasons. Vinh said that the shifting political winds of FCC policy and the uncertainty of a Trump second term will likely make ISPs gun shy about engaging in any egregiously anticompetitive practices.
“I think it would be a bad policy and public relations decision for ISPs to implement packages with full-blow throttling anD blocking, even though it would be permitted under the repeal that Chairman Pai has put forward,” Vinh said.
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It’s clear that Thursday’s FCC vote isn't the end of the fight. McSherry from EFF said that a court challenge to the FCC decision is “virtually certain” and that the FCC’s lawyers will have the difficult job convincing a judge why “everything [the FCC] said to support the record in 2015 is somehow magically no longer true anymore.”
Given the snail’s pace of the courts, plus a lengthy appeals process, it could be years before the net neutrality fight is settled. And by then, we might have an entirely new FCC making the rules.
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