Net Neutrality: Why All the Fuss?

Over twenty years ago, President Clinton and a Republican Congress established the policy of the United States “to preserve the vibrant and competitive free market that presently exists for the Internet…unfettered by Federal or State regulation.”

The Communications Act of 1934, as amended, charges the FCC with “regulating interstate and foreign commerce in communication by wire and radio.”  The Communications Act regulates telecommunications carriers, as common carriers, under Title II.  Information service providers, “by contrast, are not subject to mandatory common-carrier regulation under Title II.”  The Commission, however, “has jurisdiction to impose additional regulatory obligations under its Title I ancillary jurisdiction to regulate interstate and foreign communications.”

On August 5, 2005 the FCC adopted a Policy Statement enumerating four principles incorporated into its ongoing policy making activities “to ensure that providers of telecommunications for Internet access or Internet Protocol-enable (IP-enabled) services are operated in a neutral manner”.   These were adopted to ensure broadband networks are widely deployed, open, affordable, and accessible to all consumers.

In October 2009 the FCC initiated a Notice of Proposed Rulemaking that codified the four principles established in the 2005 Policy Statement, and proposed two additional principles of nondiscrimination and transparency, acknowledgement that these principles apply to all forms of broadband Internet access.  These six principles and their regulatory application beyond telecommunications providers represent the “Net Neutrality” issue.

In December 2010 the FCC issued a Report and Order adopting Open Internet Rules embodying four high-level core principles; transparency, no blocking, no unreasonable discrimination, and reasonable network management.  The rules apply to Broadband Internet Access Service (BIAS), which encompasses both the telecommunications and internet service portions, effectively making internet service subject to Title II regulation.  The rules do not apply to edge provider activities such as the provision of content or applications over the internet.

In April 2015, the FCC issued an Order Protecting and Promoting the Open Internet, which included strong rules protecting consumers from practices that can threaten the Open Internet.  These were:  No-Blocking, No-Throttling, No Paid Prioritization, No-Unreasonable Interference/Disadvantage Standard, and enhanced Transparency Requirements.  However, the FCC forebear from applying 27 Title II rules and other provisions to BIAS as inappropriate.

On December 14, 2017, the FCC issued a Declaratory Ruling reversing the order classifying BIAS as subject to Title II, reinstating classification as an information service.  The FCC believes this framework is the best approach to promoting broadband deployment in rural America, infrastructure investment throughout the nation, encourage innovation both within networks and at their edge, and promote the goal of eliminating the digital divide.

This returns regulation of broadband privacy and data security to the Federal Trade Commission as in the past.  Consumers will probably not see immediate changes to their internet service.  Internet providers will likely proceed cautiously and not make significant changes immediately.  However, there is the possibility we could see significant changes over time, driven by market forces rather than regulatory rules.

Breaking News. On May 16, the Senate voted 52-47 to restore net neutrality.   The matter faces an uphill battle, as it is currently not expected to have enough support in the House or Presidential support.