The battle over net neutrality (the vital principle that internet access providers should not interfere with what users do online) is heating back up. The FCC’s 2010 Open Internet rules ostensibly established net neutrality principles in policy (we’ll get to how effective it has actually been in practice…) but Verizon has been seeking to overturn the regulations. On Monday, September 9, the DC Circuit Court will hear oral arguments in Verizon v. FCC, focused on whether the FCC has the legal authority to implement the Open Internet rules.
This post will give you some background on the Verizon case and what’s at stake in it. Whether the FCC’s Open Internet rules stand or not is pivotal for net neutrality and the future of the internet— but also isn’t. While net neutrality protections are essential for internet users, the FCC’s Open Internet rules in particular are quite problematic. In some ways net neutrality would be better with these rules and in some ways could be better without them.
Here’s why Verizon v. FCC matters:
1. The rules prohibit the most egregious net neutrality violations. The FCC’s Open Internet rules are based in a deeply compromised version of net neutrality and are far from the strongest protections we could hope for (they were essentially written by Google and— ironically enough— Verizon). In spite of this, though, they are definitely better than nothing. The Open Internet rules bar wired internet access providers from blocking online content, services, applications, and devices or unreasonably discriminating in internet traffic. For instance, this stops Comcast from making youtube.com disappear from your browser (or redirecting it to nbc.com for that matter) and from throttling Netflix’s video streams. The Open Internet rules can be actually stronger than they immediately appear and have potential to be robust safeguards if enforced by the FCC properly.
2. The rules are an important foothold against total deregulation. Underlying the fight over the Open Internet rules is whether the FCC can regulate broadband at all. During a wave of deregulation in the 2000s, the FCC removed almost all of its oversight for internet access and now the agency is left with a shaky legal foundation for the Open Internet rules— what Verizon asserts is not enough authority. The Open Internet rules are important, then, because striking them down would eliminate virtually the last remaining public interest protections for internet access. Beyond that, though, if the courts buy Verizon’s argument in its Open Internet challenge, it would set a very troubling precedent for enforcing net neutrality in policy: the telecom operator says that it has a First Amendment right to “edit” the internet as it sees fit. If the free speech rights of “corporate persons” are allowed to trump the free speech rights of actual people, it doesn’t bode well for the future of the online public sphere.
And here’s why Verizon v. FCC doesn’t matter:
1. The rules haven’t been very effective. Even if the Open Internet rules are allowed to stand, they’re weak enough to allow a lot of net neutrality violations anyway— and for just the sort of activities especially key to the future of the internet. Most glaringly, most of the rules don’t even apply to mobile broadband (which is poised to soon become the dominant means to access the internet and already is primary among the underprivileged). This is why we see AT&T allowed to block FaceTime on the iPhone. Further, the rules don’t apply to “specialized services” (such as IPTV or any other managed service a network operator provides over broadband that isn’t regular internet access). Comcast calls Xfinity a “specialized service,” supposedly separate from the “public internet,” so it’s allowed to favor its own video streaming service by not counting Xfinity-on-Xbox traffic against users’ data caps. In other words, there are many net neutrality abuses not covered by the Open Internet rules.
2. Overturning the rules could actually lead to getting better ones. Paradoxically, there is a possibility that having the Open Internet rules struck down could be for the best in the long run— blowing up the whole thing and starting from scratch may be the only way to get truly effective net neutrality policy. Specifically, if the courts find that the FCC did in fact deregulate itself into oblivion and no longer has any statutory authority to address broadband, the agency could be forced to re-regulate broadband if it wants to actually remain relevant. (To get policy wonky: what the FCC needs to do is reclassify broadband as a “telecommunications service” under Title II of the Communications Act, where it has more authority to implement “common carriage”-based rules like net neutrality than on Title I “information services” where broadband is now). Counting on this outcome is very risky, though, because it’s impossible to know what the FCC will be like under incoming Chairman Tom Wheeler (an enigmatic figure who has inspired both hope and disgust from public interest advocates).
So, protecting net neutrality isn’t as simple as just upholding the FCC’s Open Internet rules— net neutrality could be better off with or without them. It really depends more on what the FCC does— and, crucially, what we as citizens push them to do— after Verizon v. FCC.