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It was a landmark year for proponents of an open Internet, but that doesn’t mean the debate over Net neutrality has been to put to bed.
After nearly a year of intense debate about how to regulate Internet traffic, the Federal Communications Commission in June put into effect a set of Net neutrality rules designed to ensure that all Web traffic is treated the same. Before the ink was dry on the FCC’s regulations, broadband providers sued the government to get them thrown out.
Federal regulators head back to court this week to defend the rules. Oral arguments in the case will be heard Friday in a federal appeals court in Washington, D.C., with a decision likely to come next year.
The stakes are high: The court’s decision will determine how the Internet will work in the future. And that future looks different depending on which side you believe. If you side with the FCC, the rules will save the Internet from being co-opted by big businesses looking to shut out competitors and control what content consumers see on their computers and mobile devices. If you’re in the other camp, the rules will curtail innovation in services, freeze network investment and send prices for broadband access through the roof.
What’s Net neutrality again?
Net neutrality is the idea that all traffic on the Internet should be treated equally. This means your broadband provider, which controls your access to the Internet, can’t block or slow down the services or applications you use over the Web. It also means your Internet provider can’t create so-called fast lanes that force companies like Netflix to pay an additional fee to deliver their content to customers faster.
Although there is broad agreement with the basic premise of Net neutrality, the FCC’s rules have become a lightning rod for controversy because the commission has reclassified broadband as a public utility. That change places broadband providers under some of the same strict regulations that have governed telephone networks for more than 80 years.
It’s this issue that prompted telephone companies and cable operators to band together and sue the government. They argue the new classification lets the FCC impose higher rates and will discourage companies from building or upgrading their networks. The FCC says it has no intention of regulating rates or quashing innovative business models. The agency argues it reclassified broadband only to ensure it could fight legal challenges that Internet providers may lob its way in the future.
How did we get here?
The issue of how or even if the government should have rules to protect the Internet has been percolating for more than a decade. The FCC had adopted a set of principles for an open Internet in 2005. Three years later when the agency tried to reprimand Comcast for violating those principles, the federal court ruled the FCC had no authority to take such action. In 2010, the agency made good on its promise to protect the open Internet with its first set of true Net neutrality regulations.
Verizon challenged these rules in court, and in 2014, the court once again questioned the FCC’s legal authority. But in a small victory for the FCC, the court acknowledged the agency’s concern that large broadband providers might abuse their power and suggested employing a sounder legal argument based on the 1996 Telecommunications Act.
Chances are you didn’t care about any of this. The general public didn’t start paying attention until June 2014. That’s when comedian John Oliver devoted part of his HBO show, “Last Week Tonight,” to accusing cable companies of shaking down regulators to get a rewrite of the rules. Thanks to Oliver’s 13-minute rant, which called on viewers to flood the FCC with comments supporting an open Internet, 4 million Americans contacted the agency, crashing its servers.
With the public rallying support for stricter regulations, President Barack Obama threw his weight behind the plan to reclassify broadband. The issue has been politicized along strict party lines, with the two Republican FCC commissioners opposing the rules and the three Democratic commissioners supporting them.
So what now?
The fight continues on Friday with oral arguments, and the decision will likely spill into 2016. Coincidentally, the case will be argued before the same court that struck down the FCC’s two previous attempts at Net neutrality. What’s more, David Tatel, the judge who wrote the majority opinion for the court in the first two attempts to defend the FCC’s Net neutrality efforts, is on the three-judge panel.
It’s difficult to say what Tatel’s involvement could mean for the outcome of the case. He’s certainly the most experienced judge on the panel when it comes to this issue. In both opinions, he chided the FCC for overstepping its authority, but the agency believes the reclassification of broadband follows the blueprint Tatel laid out in his most recent opinion.
Others believe that the FCC misread Tatel’s opinion and that the agency has overstepped its authority in reclassifying broadband.
With the same court and the same judge deciding the fate of these latest rules, the FCC and consumers are likely to get a clear indication of just how open the Internet will be in the future.
