By Max Burke
This past Monday, President Obama formally addressed the ongoing dispute over whether the Internet should be “open” and “neutral.” In a written statement and an accompanying video, the President asked the Federal Communications Commission (FCC) to “ implement the strongest possible rules to protect net neutrality.”
In case you haven’t seen or read any technology-related news this past year, here’s a quick primer on what Neil Irwin of The New York Times described as “one of the most important policy disputes that will determine the future of the Internet.” Net neutrality, or open Internet, is the idea that Internet service providers (ISPs) “should treat all Internet traffic equally” and should not be able control what websites users can or can’t access. This is essentially the system we have been living under since the dawn of the Internet. But ISPs, including Comcast and Verizon, want to be able to manage some of that access by collecting fees from certain content providers (e.g. Netflix) “in exchange for special access to Internet users.” As Irwin noted, this type of paid prioritization is essentially the business model of cable television providers (many of whom are also ISPs). And like the “boom in content for cable television customers,” ISPs believe there would be a similar “explosion of creativity on the Internet” if they were able to prioritize websites and applications.
Supporters of net neutrality believe the exact opposite is true—that paid prioritization would stifle creativity and innovation. Facebook and other innovative companies that often started in college dorm rooms were able to flourish because the barriers of entry were low, or so the argument goes. Supporters also argue that the Internet is like a public utility service that should be easily accessed and enjoyed by all, and ISP control over what Internet users can access doesn’t comport with that principle.
The President’s statement reflects both arguments. And the latter, that the Internet is a utility, may provide the legal foundation for reclassifying broadband providers as “common carriers,” thereby subjecting them to regulation under Title II of the Communications Act of 1934. Giving ISPs common carrier status would allow the FCC to more firmly regulate them, ensuring net neutrality. Currently the FCC classifies ISPs as “information-service providers,” which are exempt from Title II regulations. The Supreme Court upheld this designation before. Because of this classification, the D.C. Circuit struck down the FCC’s previous set of net neutrality regulations last January (which we wrote about here). But the D.C. Circuit strongly indicated that net neutrality regulations would be permissible if the FCC changed its classification of ISPs to common carriers.
Whether such a change will occur remains to be seen. FCC chairman Tom Wheeler, a former telecom lobbyist, has been less embracive of net neutrality than Obama. Last April, the FCC issued proposed “hybrid” rules that were largely criticized by open Internet supporters. And though Wheeler stated in his response to the President “that the Internet must remain an open platform,” he reiterated that the hybrid approach was still on the table. Whatever the new rules turn out to be, they most likely will not be promulgated out until sometime next year.
Washington Journal of Law, Technology & Arts 