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 | December 14, 2017 |


A Comment on Today's Net Neutrality Decision

A Comment on Today's Net Neutrality Decision If enterprise and individual consumers scream loud enough about today’s short-sighted action, there’s hope that the Internet can again provide equal access.

If enterprise and individual consumers scream loud enough about today’s short-sighted action, there’s hope that the Internet can again provide equal access.

I do not now, nor have I ever, belonged to a political party. I have never missed voting in a November election, and have happily and easily voted for both Republicans and Democrats. I share this only to put what follows in context. The FCC's horribly partisan decision on the Net neutrality rules put in place in 2015 is exactly why, although I have opinions on political issues, I've never committed to one party or the other. I can't remember ever being as disappointed as I was today in the position taken by the majority commissioners (Chairman Pai and Commissioners O'Rielly and Carr), which hurts consumers in ways that are far removed from the insular bubble that is Washington, DC.

The essence of the decision boils down to how the Internet will be regulated. The 2015 decision treated the Internet like a utility, thus forcing a series of regulatory burdens on providers of Internet services. These burdens (the old rules are still in place for at least the next 60 days) generate, among other things, revenue that supports worthy programs like schools and libraries, rural health care, service delivery to high-cost areas and other support that helps to provide communications services to consumers -- both enterprise and individual -- for whom a strict financial case cannot be made. In exchange for the regulation and utility-like classification, ISPs have been required to meet certain standards in service delivery and accessibility, and most importantly, they have been prevented from blocking and/or regulating access to legal content.

In fairness, former FCC Chairman Michael Powell, who was at the helm of the Commission from 1997 through 2005, said in an editorial this week that "if you want to see the debilitating impact of utility-style regulation on investment and innovation, just look at our crumbling roads, bridges and electric grid and imagine what that kind of chronic underinvestment will do over time to the future of the internet." While advocating on behalf of the newly rescinded Net neutrality rules, it's important to consider that when the former Chairman was sitting in the biggest office at the FCC, the Internet was in a much different place than it is now.

If bridges and roads are in need of attention, the problem is that these are not "sexy" issues that inspire vigorous and engaging debate. Truthfully, everyone wants his/her highway fixed, but no one wants to talk -- or hear -- about the issue. As such, it's a low priority for those drafting budgets when hotter topics are just simply more compelling.

Further, while the former FCC Chair may be right about the state of highways and the electric grid, his underlying assumption that regulation impedes innovation is simply hogwash. In fact, the opposite is true -- regulation inspires creativity and innovation. While it's unfair to assume that all tech startups have thrived in the current regulatory environment, it's equally unfair to suggest that regulation has prevented innovation. It's simply not true.

The switch to treating the Internet as an "information service" will make ISPs' jobs easier by lessening the reporting and service delivery requirements that were all part and parcel of being a "telecommunications service." Some rules and regulations will be lifted, but the consequences for consumers will be that the services delivered may be impeded or blocked by ISPs who will be able to charge more for whatever they deem premium content. The only requirement is that that such ISPs will disclose what they're blocking and throttling. Where will this disclosure be made? Not sure yet, but I'm guessing in the small print of the Internet service contract(s) signed by consumers -- large and small. Think small print. Very small print.

It's also very likely that the way ISPs bill consumers will evolve to allow for the repacking of Internet access options, including issues associated with both speed and content. Both at home and at work, the next six months will be an important time for all consumers to carefully monitor their bills and be familiar with the terms of their contracts so that when rates and services do change, they're not surprised.

Despite the disappointing decision of politically motivated commissioners who believe that the market is the best arbiter of good business judgment, there are some possible opportunities for a reprieve. According to The Washington Post, 83% of Americans (including three out of four Republicans) oppose the FCC's action today. With this in mind, calls to Representatives and Senators can be very valuable. With enough screaming from constituents, it's not at all impossible that Congress might be forced to weigh in on the issue and take its own action, thus moving the decisions out of the hands of the FCC and Executive Branch, and into the hands of the Legislative Branch of the federal government. This is a definite possibility.

Additionally, it's likely that litigation is literally moments away. The best news on this front is that there are big players on both sides. This is not a David and Goliath fight, but, in fact, a much more level playing field with large ISPs (including Verizon, AT&T and Spectrum, among others) on one side, and data providers (Netflix and Google, with many, many consumer groups) on the other. This part will likely be very interesting.

One final point: The FCC received more comments from consumers than on any issue before. Of those comments, 2 million were submitted under stolen identities, 500,000 were submitted from Russian addresses, and 50,000 complaints went "inexplicably missing," according to The Washington Post article. There is some question as to the extent to which the FCC took such comments seriously, since there were so many fraudulent submissions. For what it's worth, New York's Attorney General is investigating. The issue has been decided for now, but it is to be hoped that if consumers -- both enterprise and individual -- scream loud enough about today's short-sighted action that the Internet can again provide equal access. The title of the act, "Restoring Internet Freedom Act," couldn't be any more of a misnomer. Maybe it should have been called what it really is -- Restricting Internet Content and Access Act. It's time for the "#MeToo" movement to come to the net...

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