July 12, 2017 marked the Net Neutrality Day of Action, an online protest against the US Federal Communications Commission’s (FCC) plans to roll back oversight of high-speed internet service providers (ISPs). Amongst numerous other stakeholders, tech giants such as Amazon, Apple, Google, and Netflix, participated in the protest, voicing opposition to the FCC’s intention to loosen regulations on broadband companies. The FCC’s chairman, Ajit Pai, announced the Restoring Internet Freedom plan in April 2017, which would overturn the Title II Order. The plan would reclassify ISPs as “information services” under Title I of the US Communications Act, from their current status under Title II as “common carriers”. The Title II classification is much more strict, and established that the FCC could impose regulations on ISPs much like it does with phone companies. Reclassification under Title I would only permit the FCC to undertake “light-touch regulation“.
The Title II Order was implemented in 2015 under the Obama administration, which heavily supported stronger regulation of ISPs. The idea that broadband companies need to be more strictly governed is pursuant to a principle that has come to be known as “net neutrality”. In essence, net neutrality speaks to the idea that ISPs should not be able to dictate or control content on the internet. Typically this has meant that ISPs should be prevented from blocking, slowing down, or limiting access to certain content on the internet, whilst charging websites and content providers fees to enjoy normal speeds and access. Under Title II, further regulations were put in place to better protect internet users’ privacy — making it more difficult “to collect and sell browsing information and other user data.” However, those privacy regulations were overturned by a bill signed by President Trump in March 2017 after it passed through Congress. Overall, net neutrality is intended to provide internet access that is uninfluenced by the business affiliations your ISP happens to have.
According to Mr. Pai, the Title II regulations have been detrimental, in so far as they have stifled the growth and development of ISPs. He argues that since ISPs are not able to turn a profit from throttling content and charging more for high-speed access, ISPs are unwilling or unable to expand their services to rural and poorer areas, leaving many without quality access to the internet. Furthermore, Mr. Pai contends that the strict regulations have prevented smaller ISPs from being competitive, negatively impacting smaller businesses and inhibiting the market growth of ISPs. By overturning the Title II regulations and eliminating the Internet conduct standard, which “gives the FCC a roving mandate to micromanage the Internet,” Mr. Pai argues that fewer regulatory constraints and oversight on ISPs will mean bringing better internet access to more Americans, creating jobs by allowing for broadband infrastructure expansion, increased market competition and prevention of monopolies, and restoring consumer privacy by allowing the Federal Trade Commission (FTC) to once again police digital privacy practices.
On the other hand, those opposed to the FCC’s plans to overturn Title II and loosen oversight of broadband companies argue that it puts too much power in the hands of ISPs to determine what sort of things consumers can access. If ISPs are able to control what you access and the speed at which you do, then they are more likely to promote their own content while smaller content generators are left to flounder, as they are unable to afford “pay to play” charges. To this end, rolling back net neutrality protections might inhibit growth and innovation in the broadband industry, as a significant degree of power is ceded to broadband providers. In his speech delivered on April 16, 2017, Mr. Pai also attacked an opposing argument that the current regulations are essential to protecting free speech, an argument he called an “absurdity”. While net neutrality regulations enable content creators equal opportunity to communicate their content online, allowing ISPs to manipulate access to content creates the risk that some content will effectively be barred from the internet if they are blocked by the ISP or cannot afford the ISP’s charges. Nevertheless, Mr. Pai contended that government regulation is antithetical to protecting freedom of speech.
On May 23, 2017 the FCC released a Notice of Proposed Rule-Making, which has been adopted by the FCC and is now receiving public input. The potential changes have sparked intense public debate. Comments are due on July 17, 2017 and may be submitted here. Reply comments will be delivered by the FCC on August 16, 2017, following which the FCC will make a final determination on whether or not to implement the new rules and overturn the Title II Order and its related regulations.
This blog post was written by a CCLA summer law student. Views expressed do not necessarily reflect the view of the CCLA.