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Net Neutrality May Be Returning to the U.S.

Perhaps this hasn’t affected you yet, but my email has been coming in in clumps—three emails at once, a pause, then another six emails at once. While I can only read one message at a time, the reason for my data downloading in dribs and drabs is likely because my provider, like many of yours, may be throttling data downloads. Because it can – under the current regulatory regime governing Internet access and support, there's nothing preventing an Internet service provider from holding back data.

Internet Throttling is only one of the allowable, anti-end-user actions that’s been permissible due to the absence of net neutrality rules; when net neutrality rules were in place, Internet providers had to treat content in a way that’s at least reasonably equitable. Specifically, network neutrality rules prevented providers from charging customers for “fast lanes” of Internet traffic, while also prohibiting either blocking of legal content or throttling. If the FCC takes positive action (and even if and when it does), those presumably troubled by this reversion to the good old days are likely to sue, and these suits are likely to end up at the Supreme Court. Once again, the legal battle will be between Internet providers vs. consumers. The good news though is that it’s reasonable to expect that it will take years before the case gets that far.

Since the beginning of the Biden Administration in 2021, the FCC has had only four commissioners, two Democrats and two Republicans, as some senators prevented the fifth Commissioner nominated by the administration, (consumer advocate Gigi Sohn) to advance for a final vote. Ultimately, the nomination was withdrawn, leaving the Commission with an even split between Republicans and Democrats and preventing politically-charged issues from being approved. However, with the successful nomination of Anna Gomez to fill the fifth Commissioner’s role, policies that have historically been important to Democrats, including net neutrality among others, can once again be addressed. 

While the anticipated return to net neutrality conditions, where providers cannot throttle legal content, charge for “fast lanes,” or simply discriminate against legal content, will not happen immediately, it is likely within the next six months. Almost as soon as new commissioner Anna Gomez was approved by the U.S. Senate during the final week of September, current FCC chair Jessica Rosenworcel, announced that at the next Commission Open Meeting on October 19th, a Notice of Proposed Rulemaking on net neutrality (NPRM) would be on the agenda.

Particularly as a result of the pandemic, the number of people who believe that the Internet should not be treated as a utility has shrunk dramatically; a nation of workers simply does not have a lot of sympathy for Internet t providers who stand to lose some control over their pricing plans and business practices for service delivery. It’s tough to argue these days that the Internet is anything other than a utility, and needs to be regulated as such.

Currently, Internet access falls under Title I of the Communications Act which keeps such services from regulation. Under Title II, such regulations are subject to common-carrier open access regulation. Pushback to the reclassification of broadband Internet access service (BIAS) under Title II of the Communications Act will come from the largest providers, along with those pundits and thought leaders who believe that deregulation is the answer to every ill. 

From the enterprise perspective, the return to a net neutrality world should, in most cases, provide an end to the provider-imposed throttling. It may also enable billing to decrease (at the provider’s discretion, of course) when paid prioritization goes away. Providers may find another way to keep charges where they are by simply recategorizing line items, but the formal faster lanes should go away. This is good news if you’re a customer, and probably bad news if you’re a provider, because the government will step into take steps toward leveling the playing field that for whatever reason (read: shareholder return) providers have been unable to do themselves.

Net Neutrality was very popular when it was fully implemented driven by former FCC Chair Tom Wheeler in 2015. At that time, the rules were referenced as the Open Internet Order. At the outset of the Trump Administration, the rules were abandoned under the chairmanship of Ajit Pai. Now they’re very likely coming back. Not immediately, but soon.

The draft NPRM, which will open for comment at the FCC’s October meeting, proposes that providers of broadband services, irrespective of the underlying technology (landline, mobile, satellite), cannot block lawful content or prevent the attachment of non-harmful devices to the network. As has been previously mentioned, throttling content will no longer be permissible, nor will paid prioritization of Internet traffic or discrimination against traffic which originates from providers other than the entity providing the actual connection. In any case, it will be a while before comments are drafted, collected and reviewed. Only after that time has passed will the rules likely change. While the final document is likely to look very similar to what’s proposed in the draft NPRM, the key word is “draft,” so nothing will be final until it’s really final. File your comments here -- the docket number is WC No. 23-320, and you’ll need this identifier to get to the right spot.

Providers of Internet service have had more than four years to step up and provide high speed Internet service (BIAS) not only to those communities where they can make the most money, but also to those areas where cost-justification will never be enough to satisfy construction and operational costs. We leave it to the reader to assess how well these providers have served their customers, especially during the months of lockdown.

While states have stepped in where they can, the fact remains that digital redlining, where financial models (read: shareholder return) simply don’t add up without government intervention and support, one of the many important lessons of the pandemic is that the Internet is a utility, and denying access to it to those for whom it may not make strict financial sense is now equivalent to denying those same communities electricity or heat, simply because the cost to build and maintain infrastructure and service delivery doesn’t make financial sense. The bottom line is that it makes sense in all other ways and the FCC is right to bring Net Neutrality. Thankfully, it now has the power to do so.