On October 19 2023, the Federal Communications Commission (FCC) voted to move forward on a proposal to reinstate net neutrality. This move would reestablish the agency’s authority over broadband internet access service (BIAS) and, rightfully, reaffirm rules treating it as an essential service – one that is integral to American life. However, focusing solely on the ability of ISPs to degrade service quality across communications infrastructure will not fully address anticompetitive industry practices. Without also considering the power of browsers and OS, the Internet will never be universally fair, free and open.
Net Neutrality: A Brief History
- 2003: The term ‘net neutrality’ is coined by Columbia University professor Tim Wu, representing the idea that broadband customers should have access to any site without interference by high-speed ISPs.
- 2005: The Bush-era FCC, in a policy statement, prohibits ISPs from blocking legal content or preventing consumers from connecting their chosen devices to the Internet.
- 2008: Comcast sues the FCC, arguing that it has overstepped its bounds, after the agency ordered Comcast to stop slowing connections that used BitTorrent software. The court rules that the FCC failed to make a legal case that it had authority to enforce the 2005 statement.
- 2014: Verizon sues the FCC over its ‘Open Internet Order’, which imposed disclosure, anti-blocking, and anti-discrimination requirements on broadband providers. The court rules that, as broadband is classified as an “information service”, regulating broadband providers is beyond the FCC’s jurisdiction.
- 2015: The Obama-era FCC reclassifies broadband as a “telecommunications service” under Title II of the Communications Act, granting the FCC “common carrier” authority over broadband providers.
- 2017: The Trump-era FCC, led by Ajit Pai, repeals the newly installed net neutrality rules, leaving the Internet without the supervision of an expert agency.
- 2023: On October 19, the FCC votes to move forward on a proposal to reinstate open Internet rules adopted in 2015 and reestablish its authority over BIAS.
A Return to Net Neutrality
In its Notice of Proposed Rulemaking (NPRM), the FCC emphasizes the importance of a regulatory “baseline”, which it can use to prevent and address conduct that harms competition and Internet openness. The commission proposes to return BIAS to its classification as a telecommunication service under Title II of the Communications Act, and further reclassify BIAS as a commercial mobile service. This brings broadband providers within the FCC’s regulatory scope and allows it to impose restrictions to prevent providers from distorting competition and ensure that Americans benefit from open access.
There are three principal restrictions that the FCC seeks to impose on broadband providers. First, the commission proposes to adopt a rule prohibiting ISPs from blocking lawful content, applications, services, or non-harmful devices. Second, it proposes to adopt a rule preventing ISPs from throttling – that is, degrading the quality of service provided by incumbents, so as to render them effectively unusable. Third, it proposes to adopt a rule to ban paid or affiliated prioritization, whereby an ISP accepts consideration from a third party to manage its network in a beneficial way (thus bifurcating the internet into ‘fast’ and ‘slow’ lanes). These rules are all in the hopes of removing the power asymmetries that drive anticompetitive practices, to level the playing field for market participants.
Net Neutrality in a New World
The FCC recognizes the threat that ISPs pose to Internet openness – namely, that they are in a position to act as ‘gatekeeper’ between end users and edge providers. However, it fails to recognize the power that tech monopolists, such as Google, hold in controlling their browsers.
The Commission’s central objective of providing openness is negated by the fact that Apple and Google are blocking access to internet addresses and creating proxy servers. Specifically, communication using hyperlink text relies on address information that is public (IP addresses, URLs, UAS data, etc.). Google’s privatization of this information, in cloaking IP addresses, fundamentally interferes with this communication service. If the FCC is truly serious about its reclassification of BIAS as a telecommunications service, it must also be alive to the privatization of essential address information. Otherwise, its efforts to increase openness and accessibility will be in vain.
IP addresses, URLs, and Third-Party Cookies enable interoperability by creating a public address system. As such, a ‘commons’ has been created, allowing independent businesses to flourish and compete. This commons is now threatened with privatization, and unless the FCC considers Google’s abuse of power, its hopes to create an open Internet will be to no avail.
Please contact Tim Cowen if you have any questions regarding the above.
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