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The FCC Net Neutrality Proposal: What Changed in a Year?

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There’s a lot of misinformation out there, so let’s use this time to clear the air on exactly what was passed through yesterday and what wasn’t.

As reported yesterday, the FCC (Federal Communications Commission) voted through by a 3-2 margin a new rules proposal that would directly affect the internet and the services our internet service providers could provide. It’s been trumpeted as a vote that protected the free and open internet and secured Net Neutrality as a matter of fact, although it is very likely we will see lawsuits from companies like Comcast, AT&T, Verizon, and Time Warner.

So what exactly was passed yesterday? To answer that, we’ll have to start all the way back at May 15, 2014. The FCC publically released a “Notice of Proposed rulemaking” in the matter of “Protecting and Promoting the Open Internet”. It was GN Docket No. 14-28. The initial documents were leaked to the Wall Street Journal the month before, prompting the FCC’s reveal (which is an uncommon maneuver, honestly). You can read the full proposal, though most of it is pretty dense. The general gist of the May 2014 proposal was that the FCC would still allow “fast lanes and slow lanes” as some have called it. In other words, broadband providers could charge businesses extra for access to their customers beyond that is currently available. Businesses who paid would be able to have prioritized or non-throttled traffic while businesses who didn’t pay might not even be able to reach their customers. These proposals are completely antithetical to the very concept of Net Neutrality.

Needless to say, consumer advocate groups like the Electronic Frontier Foundation (EFF) did not approve of the arrangements. The FCC opened up the proposals to a period of public comment and they were absolutely inundated. They received 3.7 million comments, and the majority was clearly in favor of net neutrality. The volume of comments was thanks in part to Reddit and protest actions like Internet Slowdown Day. Likely due to the overwhelming public opinion on the matter, President Obama endorsed Title II in a video announcement last November.

In response to public opinion as well as President Obama’s endorsement, Republicans introduced a discussion draft of a Net Neutrality bill this January, however Net Neutrality advocates raised alarm over the proposal, stating “We appreciate the effort by Senator Thune and his colleagues to engage on these issues by releasing this discussion draft. While this represents a good faith step forward, it also takes several very real steps back from the Commission’s 2010 rules – and certainly does not provide the kind of robust protection consumers need for what the President has rightly called ‘the critical service of the 21st century.’”

The biggest news came earlier this month when the FCC Chairman Tom Wheeler came out as not a dingo and endorsed Title II authority. That announcement led directly to the vote that passed through the FCC yesterday, reclassifying the internet as a Title II common carrier, opening it up to regulation as a “telecommunications service” instead of an “information service”. A telecommunications service provides service directly to the public, while on the other hand an information service describes sending or retrieving information. The FCC has more regulation over telecommunications services vs. information services.

“the Open Internet rules regulate the Internet like the First Amendment regulates free speech.”

With that brief timeline established, what exactly do the rules voted through do? The full text of the proposal has yet to be released. Before you start crying about censorship or backdoor dealings, this is the FCC’s standard procedure. It’s not because they are trying to hide the rules. They will come out, but certain procedures must be followed first. I contacted the FCC earlier today to ask about this, and this was the response: “The goal is to get it out as soon as possible, but there are a number of things that have to happen first, all of which are part of standard practice at the FCC.  The commissioners have to submit final written statements, and any dissents need to be addressed in the Order. Staff also must make technical edits. Commissioners then need to sign off on the final. So it’s difficult to provide a specific date, but it is following the normal processes at the FCC.”

Okay, that’s fine, but how do we know what was passed?  The FCC released an unofficial announcement. It’s unofficial because “release of the full texts of a Commission order constitutes official action.” The first three big provisions of the rules are quoted in full below: ”

  • No Blocking: broadband providers may not block access to legal content, applications, services, or non-harmful devices.
  • No Throttling: broadband providers may not impair or degrade lawful Internet traffic on the basis of content, applications, services, or non-harmful devices.
  • No Paid Prioritization: broadband providers may not favor some lawful Internet traffic over another lawful traffic in exchange for consideration of any kind – in other words, no “fast lanes.” This rule also bans ISPs from prioritizing content and services of their affiliates.”

The rules also introduced a standard for future conduct, guidelines for greater transparency by broadband companies, guidelines for reasonable network management, broad protection for services not necessarily broadband such as VoIP, and they also gave the FCC new authority to address “issues that may arise in the exchange of traffic between mass-market broadband providers and other networks and services. [..] the Commission can hear complaints and take appropriate enforcement action if it determines the interconnection activities of ISPs are not just and reasonable.”

I would recommend reading the full announcement if you want to have a good idea of what the rules will be when the official announcement comes out. Despite some comments from yesterday, there are a few notable points missing in the rules. What passed yesterday does not give the FCC the power to censor the internet, control its prices, or control the types of services you can have access to. This ruling is also, in my opion (though Verizon, Comcast, and other telecom companies will probably disagree), unconstitutional. Federal law allows federal agencies like the FCC to preempt state laws and enact regulations so long as it is acting within the scope of its authority. The big problem the Supreme court found in Verizon Communications Inc. v. FCC (2014) was that the FCC did not have the jurisdiction over broadband companies because the FCC had classified them as “information services” instead of “telecommunications services.” The Supreme Court made no value judgment on Net Neutrality rules yet they did seem to heavily imply that the FCC had the authority to reclassify broadband services as Title II common carriers as well as telecommunications services. The Supreme Court seemed to believe that section 706 of the Telecommunications act of 1996, “vests the FCC with affirmative authority to enact measures encouraging the deployment of broadband infrastructure.”

When I contacted the FCC for comment, I also asked about reader concerns over censorship. The response from the PR rep was to quote Tom Wheeler. “As Chairman Wheeler said, the Open Internet rules regulate the Internet like the First Amendment regulates free speech. The rules are meant to ensure that broadband Internet access service providers – Comcast, Verizon, AT&T, any other company – cannot interfere with the delivery of the legal content, applications, games, services, etc.  sought by consumers. The rules help ensure that broadband providers don’t use the economic incentives they have to favor their own content, or try to extract fees from content providers for prioritized treatment. The rules have nothing to do with regulating content, and don’t regulate content providers.”

As I mentioned in yesterday’s article, there is still a lot of opposition to these rulings, especially from the broadband companies. We will see what the future holds and what the lawsuits will be, however for Net Neutrality proponents this ruling so far looks like a win. What I’ve written so far is only a brief review of the rulings, and is by no means completely comprehensive. Full disclosure, I write this as a small business owner and someone with a deep interest in keeping the internet open and free as a true competition of ideas. I fully support Net Neutrality and I am not alone. The FCC Net Neutrality proposal is a positive step forward, and I am optimistic about the future.

About Stephen Crane

Stephen was hooked by the NES at a very young age and never looked back. He games on a daily basis and is currently trying to climb his way up the ranked ladder on League of Legends! Outside of the video game world he actually likes running and owns a rapidly growing collection of toed shoes. Stephen Crane is the owner of Armed Gamer.