The FCC's new rules regulating Network Neutrality split the Internet. No more is it the Internet, singular; it’s the Internets, plural. Or more precisely, it’s the two Internets: The wired and the wireless. And the new rules leave the latter virtually unprotected. With the rules soon to come into affect this fall, and public interest and industry groups aligning for lawsuits, here's what the fight is all about.
What is Network Neutrality?
Network Neutrality—or more colloquially, Net Neutrality—forms the backbone of a “free and open internet." It prohibits Internet service providers from discriminating against content. For example, many Internet service providers also provide cable television. Without Net Neutrality, these companies may choke Internet connection speeds to content competing with its cable television business, such as Hulu or Netflix. Net Neutrality prohibits this. So an Internet service provider must deliver equal speeds to all content, whatever its type.
The FCC's Net Neutrality Rules
Specifically, the FCC's Net Neutrality rules adopt three tenets: Transparency, no blocking and no unreasonable discrimination. But even though one tenet is anti-discrimination, the tenets themselves discriminate based on how one accesses the Internet. They distinguish between "fixed broadband providers" (essentially meaning Internet accessed via cable or DSL) and "mobile broadband providers" (essentially meaning Internet accessed wirelessly via cellphones). This discrimination splinters the Internet. And the result: A relatively free and open Internet for those accessing by wire, but less so for those accessing wirelessly.
The transparency tenet is the only non-discriminatory tenet. It applies equally to both fixed and mobile broadband providers. This rule mandates these providers to: “[P]ublicly disclose accurate information regarding the network management practices, performance, and commercial terms of its broadband Internet access services sufficient for [(1)] consumers to make informed choices regarding use of such services and [(2)] for content, application, service, and device providers to develop, market, and maintain Internet offerings.” More basically, this means that Internet service providers must inform consumers and developers of its service’s quality. This information includes things like connection speed and price.
The no blocking tenet, unlike the transparency tenet, discriminates. Separate rules govern the wired and wireless Internets. For fixed broadband providers, the rule prohibits them from “block[ing] lawful content, applications, services, or non-harmful devices, subject to reasonable network management.” And blocking includes impairing access speeds to these items if it “render[s] them effectively unusable.” So a fixed broadband provider can’t block Skype. Nor Hulu. And if you want to Skype while simultaneously streaming Parks and Recreation from Hulu, feel free. The provider can’t impair your connection because of it. But it can impair your connection if its necessary for “reasonable network management” (meaning “anything from relieving network congestion to security issues”). By contrast, the rule for mobile broadband providers is not so prohibitory. Under the rule, these providers cannot: “[(1)] [B]lock consumers from accessing lawful websites, subject to reasonable network management . . . [or (2)] block applications that compete with the provider’s voice or video telephony services, subject to reasonable network management.” Part 2 of this rule means that mobile broadband providers can’t block applications competing with its services. So Verizon can’t stop you from downloading the Skype app. Part 1’s meaning, however, is less clear. Some believe it prohibits blocking the same content listed in the rule for fixed broadband providers. But arguably, the rule for mobile providers protects far less content from being blocked. Its scope covers only “lawful websites,” whereas the rule for fixed broadband providers encompasses “content, applications, services, [and] non-harmful devices.” So implicitly, mobile broadband providers can block lawful applications, lawful services and all lawful content that's not a lawful website (a difficult distinction to make).
No Unreasonable Discrimination
The no unreasonable discrimination tenet, ironically, also discriminates. And it discriminates even more than the no blocking tenet. This tenet applies only to fixed broadband providers. So unlike the no blocking rule, the wired and wireless Internets do not have separate rules. Rather, one rule binds fixed broadband providers, and nothing binds mobile broadband providers. Meaning mobile broadband providers can discriminate. Under the rule, fixed broadband providers cannot “unreasonably discriminate in transmitting lawful network traffic over a consumer’s broadband Internet access service. Reasonable network management [does] not constitute unreasonable discrimination.” This rule raises two questions. One, what is discrimination? And two, what is unreasonable discrimination? Discrimination in the context of Net Neutrality is basically any time an Internet service provider treats content differently. A specific type of discrimination, for example, is “paid priority.” This is where an Internet service provider increases access speeds to some content, which necessarily decreases access speeds to other content. It’s antithetical to an Open Internet. If that’s discrimination, what’s unreasonable discrimination? Does it include paid priority? Well, we don’t know exactly. For the most part, the FCC’s rules only establish guidelines for determining reasonableness. But the FCC hints that paid priority agreements would be unreasonable, stating that these agreements “would raise significant cause for concern.” So, to recap. Mobile broadband providers can discriminate full bore. And fixed broadband providers can also discriminate, but only reasonably.
Net Neutrality Challenges: Coming to a Court Near You
To many, these rules irreversibly harm the Internet. That’s why over eighty groups lambasted them prior to their official adoption. And that’s also why groups such as Free Press and Access Humboldt have filed lawsuits challenging the rule’s validity, claiming the rules arbitrarily discriminate between wired and wireless Internet access and thus are void. But actually proving a rule void as arbitrary isn’t easy. The standard of review is highly deferential to the FCC’s rule. And as the Supreme Court recently reiterated in Federal Communication Commission v. Fox Television Stations, the standard is “narrow,” and a court cannot “substitute its judgment for that of the agency.” So basically, if the FCC can provide a reason to treat wired and wireless Internet differently, a court may be unlikely to find that the FCC acted arbitrarily. But open Internet groups aren’t the only ones dissatisfied with the rule; Internet access providers are as well. They believe the FCC’s rules exceed their “limited jurisdiction over cyberspace . . . .” And Verizon will almost certainly file a lawsuit challenging the rule on those grounds.
One Is Better than None
Yes, the FCC’s new rules splinter the Internet into two. But the rules do further an open—albeit, splintered—Internet. Though an open Internet in entirety would be ideal, an open fixed broadband Internet is "a step forward."
Blog Editor: Art Neill