By: David Hart,

Net Neutrality is the idea that your internet service provider must treat all lawful websites equally. They must not block lawful websites, throttle speeds of certain websites, or accept payment to prioritize the speed of the payer’s website. There is currently a proposal by the FCC that would effectively end Net Neutrality.[1] The heart of the issue is whether broadband internet should be classified as a common carrier or as an information service.

Since 2015, the internet has been effectively regulated under a common carrier classification, as opposed to an information service classification.[2] Before the change in 2015, Internet Service Providers were classified as an information service.[3] This changed after the Title II Order, in which the FCC classified providers as a common carrier, which brings with it much more stringent regulations.

An information service is defined as the offering of a capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications.[4] Contrastingly, telecommunication (which is classified as a common carrier) is defined as the transmission, between or among points specified by the user, of information of the user’s choosing, without change in the form or content of the information as sent and received.[5] The common carrier classification applies to services such as railroads, trucking companies, and telecommunication services.[6]  A common carrier provides a service to the general public and cannot discriminate among its users. They are statutorily prevented from discrimination in charges, practices, classifications, regulations, facilities, or services.[7] What this means to your Internet Service Provider is that they cannot increase speeds for websites that they own, or websites that pay them. If Netflix were to offer them money in order to prioritize the access to Netflix, relative to other sites, they are unable to accept. For another example, take Verizon. Verizon owns the Huffington Post. It makes sense that Verizon would want more people to access the Huffington Post. In theory, Verizon could increase their customers’ internet speed for accessing the Huffington Post while decreasing the speed of accessing other news sites, like CNN’s. Currently, they are unable to do so under the common carrier classification.[8] This would not be the case if Internet Service Providers’ classification is changed to that of an “information service.” Relative to a common carrier classification, the information service class is much less regulated. If Internet Service Providers become classified as an information service, instead of a common carrier, they would no longer be prevented from throttling or increasing speeds based on website and would be able to prioritize some sites over others.[9] However, the FCC proposal would require providers to let their customers (and potential customers) know if they blocked, slowed, or prioritized websites.[10]

The FCC will vote on the proposal December 14, 2017.[11] The FCC proposal argues that the regulatory environment of the common carrier classification has delayed new services and stifled innovation.[12] The proposal aims to end FCC micromanagement of innovative business models and restore the Federal Trade Commission’s power to protect consumers from unfair practices without burdensome regulation.[13] Opponents of the proposal argue that a change in classification would effectively allow providers to determine what websites consumers would be able to see and use.[14] This could be even more problematic as many areas of the country are dominated by a limited number of large internet providers, so even if a customer were to be dissatisfied with their provider’s decisions, they’d have few to no other options.[15]

 

[1] Restoring Internet Freedom, 82 Fed. Reg. 25,568 (Jun. 2, 2017).

[2] Protecting and Promoting the Open Internet, 47 C.F.R. § 8.5, §8.7, §8.9 (2015).

[3] Verizon Communications Inc. v. FCC, 740 F.3d 623 (2014).

[4] 47 U.S.C. § 153 (24) (2017).

[5] 47 U.S.C. § 153 (50) (2017).

[6] 47 U.S.C. § 153 (51) (2017).

[7] 47 U.S.C. § 202 (2017).

[8] Protecting and Promoting the Open Internet, 47 C.F.R. § 8.5, §8.7, §8.9 (2015).

[9] 47 U.S.C. § 202 (2017).

[10] Restoring Internet Freedom Fact Sheet ¶ 216, http://transition.fcc.gov/Daily_Releases/Daily_Business/2017/db1122/DOC-347927A1.pdf.

[11] Cecilia Kang, F.C.C. Plans Net Neutrality Repeal in a Victory for Telecoms (Nov. 21, 2017), https://www.nytimes.com/2017/11/21/technology/fcc-net-neutrality.html.

[12] Restoring Internet Freedom Fact Sheet, http://transition.fcc.gov/Daily_Releases/Daily_Business/2017/db1122/DOC-347927A1.pdf.

[13] Id.

[14] ACLU: What Is Net Neutrality (Jun. 2017), https://www.aclu.org/issues/free-speech/internet-speech/what-net-neutrality.

[15] Jeff Dunn, America Has An Internet Problem — but a Radical Change Could Solve It, Business Insider (Apr. 23, 2017), http://www.businessinsider.com/internet-isps-competition-net-neutrality-ajit-pai-fcc-2017-4/#-3.

Image Source: https://www.aclu.org/sites/default/files/styles/scale_1200w/public/wysiwyg/web15-siteimages-act-netneutrality-2400x960_0.jpg?itok=SWcUu9tK.