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 | November 30, 2017 |


Net Neutrality: Why This Battle Is So Critical

Net Neutrality: Why This Battle Is So Critical Six key takeaways about the FCC's so-called move to "restore Internet freedom."

Six key takeaways about the FCC's so-called move to "restore Internet freedom."

Every time I get a junk fax, I file a complaint with the Federal Communications Commission. Last week, when I received the most recent "too good to be true" offer, I once again headed to the FCC complaints homepage -- and immediately noticed the banner across the top providing a shortcut to the place where the FCC is taking comments on its proposal to roll back Net neutrality rules (see screen capture below). As you've no doubt heard, the agency is poised to dismantle the Obama-era Open Internet Order before year's end. Even the order's title, " Restoring Internet Freedom" is offensive to those of us who believe that while we may be sufficiently lucky to enjoy the benefits of shareholder returns, there remain many greater goods than them.

This action is not about restoring Internet freedom. It's simply about abandoning a regulatory structure that has restricted the biggest players on the stage from controlling access to content (both in terms of speed and the content itself), and letting the market go where it will. In this scenario, the rich get richer and the underserved, many of whom saw a Trump administration as a positive force for change in their worlds, get left further behind.

Under the "restore Internet freedom" plan, the FCC would transfer the responsibility for policing the privacy practices of Internet service providers to the Federal Trade Commission. To me, moving the regulatory regime of the Internet back to the FTC, and thus changing the regulatory authority under which its use is managed, is a step so far backwards that before I even finished submitting my junk fax complaint, I had made some pointed (but polite) comments to the FCC about the potential harm that a move like this, made in the name of "incentives to innovate," can and will cause. I found the language in the FCC's Fact Sheet and the documents behind it to be so loaded with inaccurate, inflammatory political rhetoric that I couldn't keep a straight face while reading them. Nonetheless, some of the key takeaways of what's proposed are as follows:

  1. Change the broadband Internet classification back to a Title I "information service" subject to a much lighter regulatory touch than is required under the current regulatory structure imposed on a Title II regulated "telecommunications service." This allows the big players to behave in a much less friendly way toward consumers and smaller market players in the name of the free market.

  2. Under the proposed new rules, ISPs are required to be transparent. Sort of. ISPs would be required to identify their practices to the public and the FCC, but they would no longer be prevented from throttling, blocking, and prioritizing paid content. So if your ISP wants you to see its content, but charges you to see a competitor's content or denies access to the competitor's content altogether, a consumer (individual or enterprise) is considered to be informed as long as the ISP has disclosed its practices. Essentially, the FCC is claiming that the current regulatory structure is overly burdensome, and it's proposing a move to the Wild West where there are no rules governing the conduct of ISPs toward their customers. Even if the FTC took action under the proposed new regulatory structure and provided oversight and a regulatory "light touch," there's no assurance that it would have the muscle to enforce any rules it might devise.

  3. Many states and localities find the proposed regulatory structure untenable, but the order prevents them, through preemption, from passing laws that offer Net neutrality-like protections to those who live and work within their jurisdictions. States could still have a role in the enforcement process, particularly with respect to matters including fraud, taxation, and commercial dealings, but only to the extent that state and local actions are consistent with "federal regulatory objectives."

  4. Under the proposal, the FTC would be tasked with protecting consumer privacy. According to Mitchell F. Brecher of law firm Greenberg Traurig, this transfer of responsibility to the FTC could be problematic, since it's unclear whether the FTC has the necessary jurisdiction to enforce consumer protection and privacy requirements against Broadband Internet Access Service (BIAS) providers. Existing regulation explicitly precludes the agency from enforcing rules governing common carriers. Whether or not a BIAS provider is legally classified as a common carrier, it's indisputable that many of these providers are effectively common carriers. There is no question that telephone companies, cellular (wireless) carriers, and even cable companies offer voice telephone service and do so on a common carrier basis, subject to Title II of the Communications Act's common carrier provisions. By taking this giant step backwards, the FCC is opting to allow some forms of voice communications to be regulated differently than others.

  5. Those communities that are interested and motivated to provide broadband where few or no options exist for even the most basic services should be nothing short of alarmed by this market-based turn. Rural high-speed broadband will never make financial sense in and of itself. It's only with a public-private partnership that those in rural communities have a chance of getting what the rest of us -- at least for now -- take for granted. And with the market being permitted to run unfettered, consumers in rural and other high-cost delivery areas may find themselves behind the curve once again.

  6. The FCC has received an inrush of comments regarding this decision. One more concern that's been raised is that it's ignoring many of these comments in the interest of time/agreement/relevance (pick one). This is too important an issue to have the FCC ignoring comments, and the vast number of comments should signal to the FCC chair and his Republican commissioners that this issue warrants careful consideration beyond the seemingly simple claim that the existing rules stifle innovation. Time and again, this argument has proven itself to be nothing more than piffle. And it still is.

To hear more from Martha on the FCC's proposed order, up for ruling on Dec. 14, tune in to our latest No Jitter On Air podcast:


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