Thursday’s FCC vote to overturn the 2015 net neutrality protections returns the Internet to an earlier regulatory regime. But what does that really mean?
When the Federal Communications Commission ruled Thursday to scrap Obama-era rules meant to prevent anti-competitive behavior by Internet service providers, FCC Chairman Ajit Pai said the action would simply return the Net to 2014.
But the reality is you can’t truly turn back the clock on the Internet.
For one, so much has of the Internet landscape has shifted since the 2015 rules were adopted. More U. S. homes rely on high-speed Internet service now — 82% of U. S. homes have broadband, up from 76% in 2012, according to Leichtman Research Group.
Factor in as well that for 12% of adult Americans, up from 8% in 2013, a smartphone and not at-home broadband is their route to online content, according to Pew Research Center data.
There have also been seismic shifts for the biggest Internet service providers, or ISPs, changes that have turned many such broadband suppliers into gatekeepers of premium content.
In 2015, AT&T acquired satellite pay-TV provider DirecTV, and the former telephone giant now is looking to buy Time Warner, a content deal that faces a March 2018 Justice Department court challenge.
Comcast, which became full owner of NBCUniversal in 2013, added DreamWorks Animation last year. Charter Communications has grown its subscriber base to 23.8 million broadband customers since its acquisition last year of Time Warner Cable and Bright House Networks. Verizon earlier this year closed its deal for Yahoo, adding its online destinations to its AOL properties.
Then and now, that dual role of broadband and content provider had many experts concerned that a new era without net neutrality rules could result in the consumer paying higher prices — and being denied access to a full menu of content choices.
At the February 2015 FCC meeting when the so-called net neutrality rules were passed, then-Chairman Tom Wheeler said the protections were needed because „broadband providers have both the economic incentive and the technological capability to abuse their gatekeeper position.“
And such provisions are just as essential now, Wheeler says on The Brookings Institution’s TechTank blog, but „there will no longer be a responsible authority proactively looking out for the interests of the users against the desires of the owners.“
FCC chairman Pai, who was among those dissenting during the FCC’s 2015 net neutrality rules vote, shrugs off those concerns.
„Americans will still be able to access the websites they want to visit,“ he said just before Thursday’s vote. „They will still be able to enjoy the services they want to enjoy. There will still be cops on the beat guarding a free and open Internet.“
Moments later, the FCC’s voted 3-2, with Pai and the other two Republicans on the commission approving, to overturn the 2015 Open Internet rules passed when Democrats were in control. Those so-called net neutrality rules prevented ISPs from blocking or throttling content and from prioritizing the delivery of online data.
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The new rules, which will go into effect in January or early February after their publication in the Federal Register, require ISPs to disclose any blocking, throttling or prioritization of their own content or from their partners.
Here’s a look back at what led to the rules in the first place and what their repeal and replacement means for consumers now.
— Years of trial and error led to 2015 rules
The FCC has spent more than a decade attempting to create some rules for ISPs, but often their attempts end up being tossed out of court in the wake of suits filed by telecom giants.
In 2005, the agency instituted some guiding principles — including consumers‘ ability to access any legal content and applications they want — to follow in its actions.
After the FCC in 2008 sanctioned Comcast for improperly slowed traffic to file-sharing site BitTorrent, a federal court two years later ruled that the agency did not have the authority to enforce such sanctions.
Then in 2014, the U. S. Court of Appeals in D. C. ruled in favor of Verizon that the FCC could not regulate how ISPs managed online traffic, because of how broadband service delivery was classified.
That led the Wheeler-led commission, with President Obama’s support, to pass regulations based on authority in Title II of the Communications Act of 1934. ISPs argued against this approach because it could allow the FCC to engage in price regulation, something Wheeler promised the agency would not do, citing years of forbearance from regulating wireless service providers.
At the time then-Commissioners Pai and Michael O’Rielly called the rules heavy-handed and a power grab and a solution, Pai said, „to solve a problem that doesn’t exist.“ — Fundamental changes were at the heart of net neutrality rules
In the 2015 Open Internet order, the FCC changed the classification of broadband Internet from an information service to a telecommunications service, hinging on the agency’s to regulate common carriers such as telephone companies, in the 1934 law and the 1996 Telecommunications Act.
The rules prevented ISPs from blocking and slowing content and from „paid prioritization,“ the practice of paying an ISP for faster delivery of content. Also included: an Internet conduct standard meant to prevent ISPs from unreasonable interference with consumer’s access to destinations on the Net.
Passed in February 2015, the rules took effect soon after and were affirmed in June 2016 by a federal appeals court, which ruled against suits filed by USTelecom, a trade association that counts among its members AT&T and Verizon, and Alamo Broadband, a fixed wireless broadband service in the San Antonio, Tex. area. — Opponents‘ concerns about the rules foreshadow revocation
Chairman Pai and other opponents of the 2015 rules argued that they overburden ISPs and kept them from investing in network expansion and upgrades. Charter Communications said this week the reversal of the rules would encourage it to invest an additional $25 billion in technology and infrastructure in the next few years.
And under the rules, the FCC looked into free data plans offered by AT&T and Verizon to assess whether providers‘ not counting certain services, such as AT&T’s DirecTV Now, against data caps were anti-competitive. As chairman, Pai ended those investigations, saying such practices enhanced competition and were popular with consumers.
The rules will pass out of effect in several weeks, but there are campaigns to get them reenacted. New York Attorney General Eric Schneiderman plans to enlist additional states in a lawsuit challenging the overturning of the 2015 rules illegal. And a move is underway in Congress for a vote to reinstate the 2015 rules.
— So will 2018 remotely look like 2014?
That remains to be seen. ISPs and Net content providers are expected to continue upgrading their speeds and offerings, as in the past, and prices have predictably risen along with the quality.
But the potential for ISPs to prioritize content and increase prices has likely increased, industry observers say.
That’s because there’s been a transfer of power from the consumer to the Net provider.
