Net neutrality: If the Internet is not a utility, what is it?

“The theory goes something like this: as long as ISPs commit to protecting net neutrality in their terms of service, the FCC can eliminate its rules while the Federal Trade Commission would punish ISPs that fail to comply with their net neutrality promises.” — Jon Brodkin, “Unenforceable:” How voluntary net neutrality lets ISPs to call the shots, ars technica, Apr. 11, 2017.

Last Wednesday, FCC chairman Ajit Pai outlined his plans to loosen the government’s oversight of the Internet by rolling back the Commission’s Open Internet Order. See Pai’s speech on the future of Internet regulation and the chairman’s fact sheet, Restoring Internet Freedom for All Americans (Apr. 26, 2017). For a synopsis, see Ali Breland’s What killing net neutrality means for the internet, The Hill, Apr. 28, 2017. The proposal will be discussed at the FCC Open Meeting on May 18, 2017. (For background, see the FCC’s own explanation of its Open Internet Order when it was enacted.) “The chairman, Ajit Pai, said high-speed internet service should no longer be treated like a public utility with strict rules, as it is now. The move would, in effect, largely leave the industry to police itself.” Quoting from Cecilia Kang, F.C.C. Chairman Pushes Sweeping Changes to Net Neutrality Rules, NYT, Apr. 26, 2016.

In his NYT op-ed piece, Tim Wu notes that this action will be taken “despite [net neutrality’s] popularity, record of success and acceptance by most of the industry.” Quoting from Tim Wu, The ‘Fix’ for Net Neutrality That Consumers Don’t Need, NYT, Apr. 28, 2017. Writing for EFF, Kit Walsh warns “[r]olling back the FCC’s Open Internet Order would mean losing the only rules that meaningfully prevent ISPs from taking advantage of their control over your Internet connection to shape your Internet experience and the market for services and devices that rely on that Internet connection. Since most Americans have only one option for broadband service, ISPs would have unchecked power to extract tolls from you and from businesses that wish to reach you.” Quoting from FCC Announces Plan to Abandon Net Neutrality and ISP Privacy, EFF Deeplinks Blog, Apr. 26, 2017. Walsh adds

Today’s announcement cleverly pretends that the current “bright-line rules,” which clearly prohibit blocking and throttling, might survive. The law says otherwise. If Chairman Pai follows through on his intention to “reclassify” broadband service, it would be legally impossible for the FCC to enforce any such rules. How do we know this? Because the DC Circuit said so.

Last Thursday, the FCC released guidance for commenting on this rule-roll-back process. As expected advocacy groups like EFF are already speaking out in opposition. See, e.g., The FCC Wants to Eliminate Net Neutrality Protections. We Can’t Let That Happen, EFF Deeplinks Blog, Apr. 25, 2017. AALL also released a statement in opposition last week. From the press release:

“Without net neutrality, law libraries may be unable to provide equal access to the legal information their users need,” AALL President Ronald E. Wheeler Jr. said. “We oppose efforts by the new FCC chairman to roll back the Open Internet Order, and we will continue to work to protect an open internet. Without free and fair access to information, there is no access to justice.”

Only time will tell but it is not looking good for net neutrality despite its acceptance by most of the industry. — Joe

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