On December 14th, 2017, the Federal Communications Commission (FCC) voted 3-2 to dismantle the current regulations on net neutrality. The concept of “net neutrality” received heightened attention following a statement in November from the FCC’s chairman, Ajit Pai, suggesting its termination. Consequently, Chairman Pai faced intense criticism from media outlets and millions of Democrats across the country. Opponents of Pai argued that this decision would permit big businesses the ability to determine what their users consume online on the basis of a paycheck. Long story short: the influence of money over online interactions will grow to an even greater extent. Although the term “net neutrality” initially seems complex, its definition is quite straightforward: “the idea … that Internet service providers should or must treat all Internet data as the same regardless of its kind, source, or destination.” For instance, an Internet provider such as Comcast may not legally prioritize sites (i.e. Amazon) by slowing the services of another company. Rather, all consumers are to be able to enjoy any site with equal access and speed.
The Telecommunications Act of 1996, implemented by President Clinton, stemmed from a desire to deregulate telecommunications and drive industry-wide competition. The act was eventually altered in 2015 to cater to the evolving world of technology, thus leading to the establishment of the net neutrality policy that is now absent from telecommunications law. The application of net neutrality delegated enormous authority to the FCC to more closely regulate Internet companies, which is the exact reason Ajit Pai acted to repeal it. Pai’s goal of killing net neutrality is based on an argument deeply rooted in boosting competition. More specifically, the current stance on “restoring Internet freedom” calls for the removal of unnecessary red tape, therefore allowing for the advancement of technological infrastructure.
The decisions made in 2015 to unveil net neutrality essentially shifted the classification of Internet providers from being Title I information services to Title II telecommunication services, or “common carriers.” To clarify, the difference in classifications pertains to the ability of the FCC to intervene in corporate actions, with the latter subjecting companies to harsher restrictions. The term “common carrier” refers to “an entity whose business transports people or goods from one place to another for a fee.” Although the term is typically used in reference to transportation services (i.e. airplanes or trains), its utilization to describe Internet providers suggests important implications for the conduction of their business. A common carrier is held liable for damages to customers and is required to warn users prior to a malfunction or dangerous situation. For an Internet provider, this means increased responsibility for guaranteeing online equality for all users and sites. The overturning of net neutrality undoes the measures taken two years ago and renames providers as Title I agents once again. A reversal to the Title I era equates to the demolition of specific regulations, such as those regulating blocking, throttling (slowing the services of certain sites), and paid prioritization. These three measures are elements of the red tape that Pai has effectively eliminated.
The main argument from Pai rests on the notion that Title II classification hinders economic investment. Days before the FCC’s announcement in May 2017 to re-evaluate net neutrality, George Ford of the Phoenix Center released a study indicative of Pai’s concerns by stressing the reclassification of Internet providers to Title II telecommunication services as the source of the problem, not net neutrality itself. The analysis highlights that Internet providers lost around $30 billion in revenue due to the shift to Title II telecommunication services. The rationale behind pushing for a reversion to Title I information services emphasizes the idea of a “virtuous circle” of investment. Such rationale goes that Internet providers will innovate new and exciting projects and consumers will use the new features, demand for companies to continuously update their services/products, and thus call for companies to invest more in innovation efforts. Pai insisted that the currently stagnant levels of tech modernization is due to unnecessary FCC oversight. On the other hand, proponents, mainly Democrats, contend that disrupting net neutrality will give corporations free reign to charge companies in order to be financially accessible to consumers. This argument can be applied to the aforementioned hypothetical example concerning Comcast and Amazon. If Amazon is capable of paying Comcast’s toll to reach Internet users, but smaller sites like Etsy are not, consumers will have no choice but to use Amazon over others, unless they decide to spend more out of pocket. Although the FCC will require disclosure of such corporate actions, economic obstacles will remain for both individuals and small businesses. Today’s Internet serves as a unique platform for entrepreneurs to reach a global audience, however, the abolition of neutrality rules easily poses a threat to the flourishing world of online small business. At the end of the day, tech giants will always have more power over one-person operations, but the key factor to keep in mind is the public’s accessibility to small businesses protected by net neutrality. Termination of such policies could lead to purposeful lagging invoked by one’s Internet carrier, which has potentially significant economic ramifications for small sites. In fact, according to one Google study, by slowing the services of a site by only three seconds, consumers will abandon the search 53% of the time.
Aside from the economic perils of net neutrality, a debate over the First Amendment has also risen. Opponents of net neutrality assert that disassembling the 2015 policies will restore free speech for Internet providers themselves, while proponents argue that net neutrality acts to break down barriers for individuals and small companies to interact on an even playing field. Earlier last year, two federal judges explicitly denounced net neutrality by upholding that FCC regulations prohibit corporate freedom, a result of strong oversight. Meanwhile, the counter argument contends that doing away with net neutrality would grant companies the liberty to block sites that may devalue their company or incite a political conflict. Both explanations are rational and persuasive, but it is difficult to predict the true outcome until the effects of the FCC’s decision are felt. Nevertheless, the conversation on free speech is clearly relevant to telecommunications law, as the Internet serves as the most far-reaching and impactful discursive platform.
Although the three Republican commissioners at the FCC voted against net neutrality, the opposition has not given up. In fact, the proposed congressional bill to restore the policy would explicitly ban blocking and throttling. However, the bill would still allow for Title I classification and the process of paid prioritization. Representative Marsha Blackburn of Tennessee, initiator of the “Open Internet Preservation Act,” is an unlikely opponent of the FCC’s decision considering her Republican Party affiliation. Nevertheless, if her bill is passed, a partial effect of the recent vote will revert back to the framework of net neutrality. Ajit Pai has applauded Blackburn’s efforts to amend his recent revisions, thus signaling that the FCC is open to negotiation.
As the Internet continues to play a significant role in shaping our education, global politics and the products we own, its maintenance is vital to our daily lives. The Internet symbolizes a free market in which ideas and finances can be exchanged without strict regulation, especially in the United States. Consequently, the FCC’s decision to reverse Obama-era policies has sent a shockwave of resistance across the country. The hit to Americans’ wallets could be felt almost immediately if Internet providers exploit their newly found freedom to charge consumers extra fees. It is now up to Congress and the Courts to decide whether the Internet will reserve its right to an unimpeded future, or fall victim to a regulatory atmosphere.