Martha Buyer
Martha Buyer is an attorney whose practice is limited to the practice of telecommunications law. In this capacity, she has...
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Martha Buyer | June 15, 2016 |


Net Neutrality Decision: Broadband a Utility, Not a Luxury

Net Neutrality Decision: Broadband a Utility, Not a Luxury The saga will no doubt continue, but for now the FCC prevails in its attempt to ensure an open Internet.

The saga will no doubt continue, but for now the FCC prevails in its attempt to ensure an open Internet.

In a clear but not necessarily "forever" victory, the D.C. Circuit Court of Appeals yesterday upheld the Federal Communications Commission's Net neutrality rules in the case of U.S. Telecom Association et al v. FCC.

In its 2-1, 184-page decision (the first seven pages of which are devoted to the names of participating attorneys) issued June 14, the court allowed the FCC's reclassification of broadband Internet as a "telecommunications service" subject to more-intensive regulation under Title II of the Communications Act than such services would be if they were classified as "information services." The Net neutrality issue has largely pitted consumers (including corporate consumers) against cable, telecom and wireless providers that claim a heavy regulatory hand dampens incentives for innovation and investment. The court disagreed with the largest providers, instead siding with the FCC and smaller consumers.

With the decision just coming down yesterday morning, it's a bit early to know what next steps either side will take. But this decision, though important, is unlikely to signal the end of these battles. The case is most certainly headed to the U.S. Supreme Court for a definitive resolution.

One of the most fundamental tenets of the FCC's rules, originally released in 2015, is that broadband has become essential -- no longer the luxury item it once was -- and, as such, must be regulated similarly to the ways in which basic telephone and electricity are governed. One of the major concerns the FCC took into account in crafting the rules is the merger -- or potential merger -- between the communications pipes and the content that transverses the country in those pipes. If a company owns the physical plant as well as the content, a fair conclusion is that it would prefer to push its own content over those of other providers.

As The New York Times reporter Cecilia Kang wrote in an article posted yesterday, "For now, the decision limits the ability of broadband providers like Comcast and Verizon to shape the experience of internet users." Of course she's correct, but the concept of "shaping the experience" of people going to the Web for information beyond the technical and structural is a bit terrifying. Certainly that shaping is what happens when, as consumers, we choose one grocery or department store over another, but somehow the thought of any entity that provides access to information forcing consumers to use its own content by limiting or restricting access to another provider's information reeks of effective censorship.

And that's before we even get to the issue of consumer privacy. One of the other hot-button issues the FCC is currently confronting is privacy regulation for broadband providers. The FCC's broadband consumer privacy proposal attempts to limit the ability of providers to collect, share, and actually use data collected from their consumers. The outcry on this issue of Net neutrality as a whole, separate from the most recent court decision, is that in this context, broadband providers are being subjected to restrictions and limitations that other Internet service providers are not. This battle has yet to be fought, but it's part and parcel of the same inherent conflict.

Speaking of conflicts, the court's decision supporting the FCC's Net neutrality rules is viewed as a victory not only for individual consumers but also small companies that depend on an open Internet to conduct business and compete in the market. While the largest broadband providers (think Verizon, Comcast, AT&T) argue that their inability to push their own content and traffic ahead of the content of others restricts their ability to generate shareholder revenue, consumer advocates believe that an open Internet levels the playing field. Further, in the opinion, the judges acknowledge that most consumers use broadband service primarily to access third-party and NOT provider content.

In perhaps the most widely quoted comment from the decision, the opinion states: "Over the past two decades, this content has transformed nearly every aspect of our lives, from profound actions like choosing a leader, building a career and falling in love to more quotidian ones like hailing a cab and watching a movie." Indeed, access to reliable, affordable broadband service has been a game changer in many Americans' lives. As such, the judges' determination that broadband service is more like a utility (read: necessity) and less of a luxury serves only to recognize what we already know. Broadband has become an essential element of our daily existence. We can certainly breathe without it, but function effectively? Maybe not.

And for those who believe that regulation stifles innovation, consumer advocates are quick to argue that regulations have enabled companies of all shapes and sizes to continue to innovate and generate returns -- albeit perhaps in a way different from how those entities originally intended. So the war between competing interests may not be over. But thus far, the FCC and the interests of individual consumers and small entities have prevailed.


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