There has been a lot of buzz (and political rhetoric) lately about the principle of “net neutrality.” If you’re experiencing a little déjà vu, you’re not alone. The notion of net neutrality has been an on-again-off-again topic de jour among internet policy experts and every so often it bubbles up into broader public policy conversations, which is exactly what has happened over the past several weeks.
To fully understand the current conversation, and why the concept of net neutrality has again become a feature of social media activism that artists especially can’t afford to lose, it is useful to start at the beginning.
What Is Net Neutrality?
In its simplest form, net neutrality refers to the general principle that all traffic, whether it’s email, video, music, social media content, or anything else on the internet should be treated equally by internet service providers. Put differently, it means that internet service providers are not permitted to discriminate among types of content or the source of that content. On a practical level, that means that streaming video from Netflix should be treated exactly the same way as streaming video from Hulu, or e-mail originating from outlook.com be treated the same way as e-mail originating from gmail.com, for example.
The concept is sometimes described in terms of related principles. One is that the internet should serve as a “dumb pipe” that carries traffic from point to point without regard to where it originates or what it is, just as physical pipes serve as mere conduits for whatever flows through it. A closely related idea is the analogous “end to end” principle, which provides that the internet – and the traffic flows over it – should be managed at the endpoints while the traffic flows freely over the network.
Regulating Net Neutrality
In December 2010, the Federal Communications Commission, the government agency charged with regulating communications infrastructure in the United States, issued what became known as the Open Internet Order, that articulated three basic rules for internet service providers:
Transparency — requires service providers to clearly disclose network management practices and the terms and conditions under which consumers are permitted to use the service.
No blocking — prohibits service providers from blocking lawful content, applications, services, or non-harmful devices being used on its network.
No unreasonable discrimination — prohibits service providers from discriminating against any type of lawful network traffic.
It’s worth noting that lawfulness is a key component of the restrictions against blocking and unreasonable discrimination, allowing room for service providers to establish practices to curb illegal use of their services, such as for piracy or human trafficking, which has become an increasingly significant concern in recent years. The Open Internet Order also preserved internet service providers’ ability to engage in reasonable network management practices, so long as they were properly disclosed to its customers. In other words, a service provider that imposed a bandwidth restriction on certain customers as a result of unreasonable usage would not violate the rules, provided those practices were made known to the customers in advance.
As many had predicted, the Open Internet Order was quickly challenged in the courts. The FCC had previously concluded that internet service providers were considered “information services” as opposed to “telecommunications services.” Had they been classified as the latter, they would have been subject to regulation as public utilities (or “common carriers” in FCC parlance), just as traditional landline phone service providers are.
That turned out to be an unfortunate position for the agency.
In 2014 an appeals court in Washington, D.C., held that the FCC lacked the authority to impose the blocking and unreasonable discrimination provisions on information services. The court essentially told the FCC that if it wanted to regulate ISPs as it had tried to do in the Open Internet Order, it would have to reclassify such providers as “common carriers.”
And so it did. Despite heavy lobbying from the telecom industry, in early 2015 the FCC voted along party lines to reclassify broadband internet service as a telecommunications service, sweeping it into the ambit of what the law calls “Title II” regulation, referring to the particular portion of the Communications Act that deals with such services, and grants the FCC the authority to regulate them.
Along with the reclassification came a new 300+ page order articulating a new set of net neutrality rules that more appropriately fit with the FCC’s authority under Title II, but that generally try to achieve the same results as the 2010 Open Internet Order. They are: in the words of the FCC:
- Transparency – just as before, service providers must disclose its network management practices to its users.
- No blocking – again, just as in the 2010 rules, service providers are not permitted to block lawful content or prohibit non-harmful devices from their networks.
- No throttling – service providers may not “impair or degrade” lawful internet traffic on the basis of content, application, service, or use of a non-harmful device.
- No paid prioritization – service providers may not favor certain services over other services, or interfere with a user’s ability to select the services and applications he or she uses. In other words, websites and other online services cannot pay to have their traffic prioritized over other internet traffic.
Most importantly, the FCC’s net neutrality rules established fairness within the internet. The rules essentially make it illegal to treat some content better than other content – it prohibited internet service providers from charging premiums for loading certain videos or images, and created a level playing field for any and all content circulating on the internet. As you can imagine, the ability to have easy access to distribute content has been especially important for artists of all types, who often find overnight fame after a video or an image goes viral. If artists were forced to pay premiums to ensure that their content reached far and wide, it would be much harder for them to achieve success due to internet fame.
The new rules went into effect on June 12, 2015.
The Recent Resurgence
After the reclassification and new rules were issued in 2015, all has been relatively quiet on the net neutrality front.
But then came Trump Administration.
Although the FCC is an independent agency, it is politically influenced by virtue of its membership, the majority of whom (including the chairperson) come from the party that controls the White House. The Open Internet Order and its subsequent revision under Title II were products of Democratic FCC chairman Tom Wheeler, who served under the Obama Administration. When President Trump came into office, he appointed Republican FCC commissioner Ajit Pai to serve as chairperson. Pai was an outspoken opponent of net neutrality as a commissioner (and indeed voted against Title II reclassification and the subsequent new net neutrality rules), and recently announced that he plans to repeal the net neutrality order at an FCC meeting on December 14.
Why Do People [Love or Hate] Net Neutrality So Much?
The response to Pai’s announcement was swift and severe, just as it has been every other time net neutrality issues have come to the fore. Proponents of net neutrality assert that without regulation, internet service providers will have an incentive to provide faster, more reliable service to those who pay for it, putting those who can’t afford to pay at a significant disadvantage. An incumbent video streaming service like Netflix or Hulu, for example, might pay service providers for a so-called “fast lane” that would prioritize its traffic over its competitors. Smaller companies or new entrants may not be able to afford to pay the service providers for similar service, giving them a significant competitive disadvantage.
Vertically integrated companies pose an even greater threat, say proponents of net neutrality. Comcast, for example, might have an economic incentive to prioritize video streaming traffic to and from NBC.com (which it wholly owns) and Hulu (in which it owns a 30% stake), while effectively de-prioritizing traffic of its competitors.
Even under the existing rules, some service providers have found a way to offer effective prioritization through a practice known as “zero rating.” Zero-rating involves providing essentially free data service to customers who use certain services or applications. As reported by WIRED, “AT&T allows its wireless customers to stream content from its DirecTV service for free and gives its home broadband subscribers free unlimited data if they also subscribe to DirecTV. Verizon exempts its Go90 video service from its wireless data caps. Comcast doesn’t count its Stream TV service towards its new data limits. And T-Mobile’s BingeOn and Music Freedom programs let users stream unlimited amounts of video and audio from select services (though it does slow down your video connections if you use BingeOn).” Although the FCC investigated the practice as a potential violation of the net neutrality rules, the agency ultimately closed the investigation without action. Proponents of net neutrality suggest that such practices may become even more widespread if the prioritization rules are abolished.
Some also fear that internet service providers will use the absence of net neutrality rules to fashion new revenue-generating service tiers, that would require users pay additional fees to access additional classes of service. A provider might, for example, offer basic service for a base fee, but charge an additional fee for a “social media package” that would be required to access Facebook, Twitter, and so on; an “entertainment package” that would afford access to streaming video and music services; and perhaps even a “financial management package” that would be required to use banking websites. Imagine a world in which artists have to pay to share and showcase their work on social media.
Opponents of net neutrality rules caution against overbearing government interference and the added costs associated with navigating the bureaucracy that necessarily comes with federal regulation. They assert that a hands-off approach to internet regulation is best for consumers, allowing the market to lead service providers to develop offerings that best match the needs of consumers.
Because the Republicans have control of the FCC, it is widely expected that the December 14 vote will result in a repeal of the net neutrality rules. But it’s unlikely that will be the end. Proponents would very likely take the matter to court, asserting that the FCC acted improperly in summarily eliminating the rules, and while that happens the rules may stay in effect. Even if the rules are scrapped, Washington may look very different after the midterm election in 2018, and a Democrat-controlled Congress may well be emboldened to take on the Trump Administration on this topic as it seeks to re-implement the Obama-era policies that Trump did away with.
Chris Reed is a Los Angeles-based photographer and lawyer. He practices copyright law in the media and entertainment industries and is the author of Copyright Workflow for Photographers: Protecting, Managing, and Sharing Digital Images from Peachpit Press.