Net neutrality in the United States
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In the United States, net neutrality, the principle that Internet service providers (ISPs) treat all data on the Internet the same, and not discriminate, has been an issue of contention between network users and access providers since the 1990s. To elucidate the term "net neutrality", one can apply a metaphor that was given and illustrated by Michael Goodwin: In his illustration, he illustrates ISPs as the driveway that connects a home to the vast network of destinations on the internet, and net neutrality is the principle that prevents ISPs from slowing some traffic or charging a premium fee for other traffic.
A core issue to net neutrality is how ISPs should be classified under the Communications Act of 1934, if they should be Title I "information services" or Title II "common carrier services". The classification affects the Federal Communication Commission's (FCC) authority over ISPs: the FCC would have significant ability to regulate ISPs if classified as Title II common carriers, but would have little control over them if classified as Title I. Because the Communications Act has not been amended by the United States Congress to account for ISPs, the FCC has the authority to designate how ISPs should be treated in addition to what regulations they can set on ISPs. The makeup of the 5-member FCC has changed with each new administration, leading to the state of net neutrality flipping back and forth over the last two decades.
In 2005, the FCC adopted network neutrality principles "to preserve and promote the vibrant and open character of the Internet as the telecommunications marketplace enters the broadband age." Between 2005 and 2012, five attempts to pass bills in Congress containing net neutrality provisions failed. Opponents claimed that these bills would have benefited industry lobbyists instead of consumers. In response to legal challenges from ISPs challenging the FCC's ability to set net neutrality principles, the FCC in 2015 issued the Open Internet Order which reclassified ISPs as Title II services and giving them authority to enforce net neutrality. The Court of Appeals for the District of Columbia upheld the FCC's new rules in a legal challenge raised by advocate groups representing ISPs.
Upon becoming FCC chairman in April 2017 as part of the Trump Administration, Ajit Pai proposed to repeal the neutrality policies, returning to the previous classification of ISPs as Title I services. The draft of the proposed repeal, published in May 2017, led to over 20 million comments to the FCC. Despite a majority of these favoring retaining the 2015 Open Internet Order, the FCC still voted in favor of repealing the Order, which went into effect in June 2018 despite efforts in Congress to stay the repeal. As a result, over 20 states launched a joint lawsuit against the FCC, while California passed its own state-level net neutrality law that is being challenged by the federal government.
- 1 Regulatory history
- 1.1 Overview
- 1.2 Early history 1980 – early 2000s
- 1.3 FCC promotes freedom without regulation (2004)
- 1.4 CLEC, dial-up, and DSL deregulation (2004–2005)
- 1.5 FCC attempts at enforcing net neutrality (2005–2010)
- 1.6 FCC's conditions for spectrum auction (2008)
- 1.7 FCC Open Internet Order (2010)
- 1.8 Narrowing of the FCC's authority (2014)
- 1.9 Deliberations about reclassification as common carriers (2014–2015)
- 1.10 Net neutrality and the Trump administration (2017)
- 1.11 Timeline of significant events
- 2 Violations
- 3 Attempted legislation
- 4 Positions
- 5 Unresolved issues
- 6 State-level actions
- 7 See also
- 8 Notes
- 9 References
- 10 Further reading
- 11 External links
In 2005, under Republican Chair Kathleen Abernathy, the Federal Communications Commission adopted network neutrality principles "to preserve and promote the vibrant and open character of the Internet as the telecommunications marketplace enters the broadband age." Between 2005 and 2012, five attempts to pass bills in Congress containing net neutrality provisions failed. Proponents claimed that these bills would preserve the open Internet that consumer groups sought, and to prohibit Internet service providers from using various variable pricing models based upon the user's quality of service level, described as tiered service in the industry and as price discrimination arising from abuse of "local monopolies enshrined in law" by some economists. Opponents claimed that these bills would have benefited industry lobbyists instead of consumers due to the potential of regulatory capture with policies that protect incumbent interests and that the bills were a transparent attempt to establish US government control over the Internet.
Large broadband Internet access service providers challenged the FCC's network neutrality principles. In Verizon Communications Inc. v. FCC, 740 F.3d 623 (D.C. Cir. 2014), the D.C. Circuit Court of Appeals ruled that because the FCC classified broadband internet service providers (ISPs) as providing "information services," governed by Title I of the Communications Act of 1934, rather than "common carrier services," governed by Title II of the Act (47 U.S.C. § 201–31), the FCC could not regulate ISPs pursuant to the much broader regulatory power found in Title II of the Act. Thus the rules were struck down. Following that ruling, the FCC took steps to reclassify ISPs as common carriers subject to Title II regulation. The FCC issued a Notice of Proposed Rulemaking (NPRM) soliciting comments from the public on the issue on May 14, 2014. The FCC received 3.7 million comments, a substantial majority of which supported reclassifying internet to a telecommunications service and ISPs to common carriers subject to Title II regulatory authority. The FCC then went forward, reclassifying retail providers of BIAS as common carriers, and adopted revised open Internet requirements. On February 26, 2015, the FCC ruled in favor of net neutrality by reclassifying broadband as a common carrier under Title II of the Communications Act of 1934 and Section 706 of the Telecommunications Act of 1996. On April 13, 2015, the FCC published the final rule on its new "net neutrality" regulations. These rules went into effect on June 12, 2015.
The United States Telecom Association, which represents large telecom companies, filed a lawsuit against the FCC in 2015 challenging the net neutrality rule. The Association argued that the FCC's classification of broadband carriers as "common carriers" was a form of administrative overreach. In June 2016, a divided panel of the Court of Appeals for the District of Columbia upheld the FCC's net neutrality rules and the FCC's determination that broadband access is a public utility, rather than a luxury.
Upon becoming FCC chairman in April 2017, Ajit Pai proposed to repeal the policies and issued a NPRM soliciting comments from the public on the issue. The FCC received over 20 million comments this time around. While this process was underway, New York Attorney General Eric Schneiderman made public that his office was investigating a substantial amount of fraudulent activity relating to the comments on this rulemaking and that the FCC has been resistant to assisting him in his investigation. The FCC wishes to restore order to the internet because they think the internet needs to stay safe. According to the FCC, they have three parts to they wish to use as a framework for they need Consumer Protection, Transparency and Removal of Unneeded regulations. They believe that internet providers were unfair and deceiving customers in this practice.
It has since been revealed that there were millions of fraudulent comments submitted during this comment period. Nevertheless, on December 14, 2017, the Federal Communications Commission (FCC) voted in favor of repealing these policies, 3–2, along party lines, as the 2015 vote had occurred. On January 4, 2018, the FCC published the official text for "Restoring Internet freedom". Shortly thereafter, twenty two state Attorneys General filed suit against the FCC, alleging among other things that the comment process had been corrupted, making the rule changes invalid.
On June 11, 2018, the repeal of the FCC's rules took effect, ending network neutrality regulation in the United States. In August 2018 the FCC admitted that its previous claim that the commenting system used during the Net Neutrality Notice of Proposed Rulemaking had been hacked was false.
Early history 1980 – early 2000s
The ideas underlying net neutrality have a long pedigree in telecommunications practice and regulation. Services such as telegrams and the phone network (officially, the public switched telephone network or PSTN) have been considered common carriers under U.S. law since the Mann–Elkins Act of 1910, which means that they have been akin to public utilities and expressly forbidden to give preferential treatment. The Communications Act of 1934 created the Federal Communications Commission (FCC) to regulate the industry and ensure fair pricing and access.
In the late 1980s the Internet became legally available for commercial use, and in the early years of public use of the Internet, this was its main use – public access was limited and largely reached through dial-up modems (as was the Bulletin board system dial-up culture that preceded it). The Internet was viewed more as a commercial service than a domestic and societal system. Being business services, cable modem Internet access and high-speed data links, which make up the Internet's core, had always since their creation been categorized under U.S. law as an information service, unlike telephone services (including services by dial-up modem), and not as a telecommunications service, and thus had not been subject to common carrier regulations, as upheld in National Cable & Telecommunications Association v. Brand X Internet Services, 545 U.S. 967 (2005).
However, by the late 1990s and early 2000s, the Internet started to become common in households and wider society. Also in the 1980s, arguments about the public interest requirements of the telecommunications industry in the U.S. arose; whether companies involved in broadcasting were best viewed as community trustees, with obligations to society and consumers, or mere market participants with obligations only to their shareholders. The legal debate about net neutrality regulations of the 2000s echoes this debate.
By the 1990s, some U.S. politicians began to express concern over protecting the Internet:
How can government ensure that the nascent Internet will permit everyone to be able to compete with everyone else for the opportunity to provide any service to all willing customers? Next, how can we ensure that this new marketplace reaches the entire nation? And then how can we ensure that it fulfills the enormous promise of education, economic growth, and job creation?
In the early 2000s, legal scholars such as Tim Wu and Lawrence Lessig raised the issue of neutrality in a series of academic papers addressing regulatory frameworks for packet networks. Wu, in particular, noted that the Internet is structurally biased against voice and video applications. The debate that started in the U.S. extended internationally, albeit with distinct differences from the European debates .
FCC promotes freedom without regulation (2004)
In February 2004, then Federal Communications Commission Chairman Michael Powell announced a set of non-discrimination principles, which he called the principles of "Network Freedom". In a speech at the Silicon Flatirons Symposium, Powell encouraged ISPs to offer users these four freedoms:
- Freedom to access content
- Freedom to run applications
- Freedom to attach devices
- Freedom to obtain service plan information
In early 2005, in the Madison River case, the FCC for the first time showed the willingness to enforce its network neutrality principles by opening an investigation about Madison River Communications, a local telephone carrier that was blocking voice over IP service. Yet the FCC did not fine Madison River Communications. The investigation was closed before any formal factual or legal finding and there was a settlement in which the company agreed to stop discriminating against voice over IP traffic and to make a $15,000 payment to the US Treasury in exchange for the FCC dropping its inquiry. Since the FCC did not formally establish that Madison River Communications violated laws and regulation, the Madison River settlement does not create a formal precedent, though established that it would take enforcement action in such situations.
CLEC, dial-up, and DSL deregulation (2004–2005)
In 2004, the court case USTA v. FCC voided the FCC's authority to enforce rules requiring telephone operators to unbundle certain parts of their networks at regulated prices. This caused the economic collapse of many competitive local exchange carriers (CLEC).
In the United States, broadband services were historically regulated differently according to the technology by which they were carried. While cable Internet has always been classified by the FCC as an information service free of most regulation, DSL was regulated as a telecommunications service. In 2005, the FCC reclassified Internet access across the phone network, including DSL, as "information service" relaxing the common carrier regulations and unbundling requirement.
During the FCC's hearing, the National Cable & Telecommunications Association urged the FCC to adopt the four criteria laid out in its 2005 Internet Policy Statement as the requisite openness. This made up a voluntary set of four net neutrality principles. Implementation of the principles was not mandatory; that would require an FCC rule or federal law. The modified principles were as follows:
- Consumers are entitled to access the lawful Internet content of their choice;
- Consumers are entitled to run applications and services of their choice, subject to the needs of law enforcement;
- Consumers are entitled to connect their choice of legal devices that do not harm the network; and
- Consumers are entitled to competition among network providers, application and service providers, and content providers.
In December 2006, the AT&T/Bell South merger agreement defined net neutrality as an agreement on the part of the broadband provider: "not to provide or to sell to Internet content, application or service providers ... any service that privileges, degrades or prioritizes any (data) packet transmitted over AT&T/BellSouth's wireline broadband Internet access service based on its source, ownership or destination."
FCC attempts at enforcing net neutrality (2005–2010)
In 2007, Comcast, the largest cable company in the US, was found to be blocking or severely delaying BitTorrent uploads on their network using a technique which involved creating 'reset' packets (TCP RST) that appeared to come from the other party. An August 2007 report by TorrentFreak (based on substantial nationwide research led by chief researcher Andrew Norton) noted that ISPs had been throttling BitTorrent traffic for almost two years, since 2005, but Comcast was completely blocking it in at least some cases. This was later verified by both the EFF and Associated Press. On March 27, 2008, Comcast and BitTorrent reached an agreement to work together on network traffic where Comcast was to adopt a protocol-neutral stance "as soon as the end of ", and explore ways to "more effectively manage traffic on its network at peak times." In December 2009, Comcast reached a proposed settlement of US$16 million, admitting no wrongdoing and amounting to no more than US$16 per share.
In August 2008, the FCC made its first Internet network management decision. It voted 3-to-2 to uphold a complaint against Comcast ruling that it had illegally inhibited users of its high-speed Internet service from using file-sharing software because it throttled the bandwidth available to certain customers for video files to ensure that other customers had adequate bandwidth. The FCC imposed no fine, but required Comcast to end such blocking in the year 2008, ordered Comcast to disclose the details of its network management practices within 30 days, submit a compliance plan for ending the offending practices by the end of the year, and disclose to the public the details of intended future practices. Then-FCC chairman Kevin J. Martin said the order was meant to set a precedent, that Internet providers and all communications companies could not prevent customers from using their networks the way they see fit, unless there is a good reason. In an interview Martin stated that "We are preserving the open character of the Internet" and "We are saying that network operators can't block people from getting access to any content and any applications."
Towards the end of 2009, FCC Chair Julius Genachowski announced at the Brookings Institution a series of proposals that would prevent telecommunications, cable and wireless companies from blocking certain information on the Internet, for example, Skype applications. In September 2009, he proposed to add two rules to its 2005 policy statement, viz., the nondiscrimination principle that ISPs must not discriminate against any content or applications, and the transparency principle, requiring that ISPs disclose all their policies to customers. He argued that wireless should be subject to the same network neutrality as wireline providers. In October 2009, the FCC gave notice of proposed rule making on net neutrality.
In two rulings, in April and June 2010 respectively, both of the above were rejected by the United States Court of Appeals for the District of Columbia Circuit in Comcast Corp. v. FCC. On April 6, 2010, the FCC's 2008 cease-and-desist order against Comcast to slow and stop BitTorrent transfers was denied. The U.S. Court of Appeals ruled that the FCC has no powers to regulate any Internet provider's network, or the management of its practices: "[the FCC] 'has failed to tie its assertion' of regulatory authority to an actual law enacted by Congress", and in June 2010, it overturned (in the same case) the FCC's Order against Comcast, ruling similarly that the FCC lacked the authority under Title One of the Communications Act of 1934, to force ISPs to keep their networks open, while employing reasonable network management practices, to all forms of legal content. In May 2010, the FCC announced it would continue its fight for net neutrality.
FCC's conditions for spectrum auction (2008)
In February 2008, Kevin Martin, then Chairman of the Federal Communications Commission, said that he is "ready, willing and able," to prevent broadband ISPs from irrationally interfering with their subscribers' Internet access.
In 2008, when the FCC auctioned off the 700 MHz block of wireless spectrum in anticipation of the DTV transition, Google promised to enter a bid of $4.6 billion, if the FCC required the winning licensee to adhere to four conditions:
- Open applications: Consumers should be able to download and use any software application, content, or services they desire;
- Open devices: Consumers should be able to use a handheld communications device with whatever wireless network they prefer;
- Open services: Third parties (resellers) should be able to acquire wireless services from a 700 MHz licensee on a wholesale basis, based on reasonably nondiscriminatory commercial terms;
- Open networks: Third parties, such as Internet service providers, should be able to interconnect at any technically feasible point in a 700 MHz licensee's wireless network.
These conditions were broadly similar to the FCC's Internet Policy Statement; FCC's applications and content were combined into a single bullet, and an extra bullet requiring wholesale access for third party providers was included. The FCC adopted only two of these four criteria for the auction, viz., open devices and open applications, and only applied these conditions to the nationwide C block portion of the band.
FCC Open Internet Order (2010)
In December 2010, the FCC approved the FCC Open Internet Order banning cable television and telephone service providers from preventing access to competitors or certain web sites such as Netflix. On December 21, 2010, the FCC voted on and passed a set of six net "neutrality principles":
- Transparency: Consumers and innovators have a right to know the basic performance characteristics of their Internet access and how their network is being managed;
- No blocking: This includes a right to send and receive lawful traffic, prohibits the blocking of lawful content, apps, services and the connection of non-harmful devices to the network;
- Level playing field: Consumers and innovators have a right to a level playing field. This means a ban on unreasonable content discrimination. There is no approval for so-called "pay for priority" arrangements involving fast lanes for some companies but not others;
- Network management: This is an allowance for broadband providers to engage in reasonable network management. These rules do not forbid providers from offering subscribers tiers of services or charging based on bandwidth consumed;
- Mobile: The provisions adopted today do not apply as strongly to mobile devices, though some provisions do apply. Of those that do are the broadly applicable rules requiring transparency for mobile broadband providers and prohibiting them from blocking websites and certain competitive applications;
- Vigilance: The order creates an open Internet advisory committee to assist the commission in monitoring the state of Internet openness and the effects of the rules.
The net neutrality rule did not keep ISPs from charging more for faster access. The measure was denounced by net neutrality advocates as a capitulation to telecommunication companies such as allowing them to discriminate on transmission speed for their profit, especially on mobile devices like the iPad, while pro-business advocates complained about any regulation of the Internet at all. Republicans in Congress announced to reverse the rule through legislation. Advocates of net neutrality criticized the changes.
On January 14, 2014, the DC Circuit Court determined in the case of Verizon Communications Inc. v. Federal Communications Commission that the FCC had no authority to enforce network neutrality rules as long as service providers were not identified as "common carriers". The court agreed that FCC can regulate broadband and may craft more specific rules that stop short of identifying service providers as common carriers.
Section 706 vs. Title II
As a response to the DC Circuit Court's decision, a dispute developed as to whether net neutrality could be guaranteed under existing law, or if reclassification of ISPs was needed to ensure net neutrality. Wheeler stated that the FCC had the authority under Section 706 of the Telecommunications Act of 1996 to regulate ISPs, while others, including President Obama, supported reclassifying ISPs as common carriers under Title II of the Communications Act of 1934. Critics of Section 706 point out that the section has no clear mandate to guarantee equal access to content provided over the internet, while subsection 202(a) of the Communications Act states that common carriers cannot "make any unjust or unreasonable discrimination in charges, practices, classifications, regulations, facilities, or services." Advocates of net neutrality have generally supported reclassifying ISPs under Title II, while FCC leadership and ISPs have generally opposed such reclassification. The FCC stated that if they reclassified ISPs as common carriers, the commission would selectively enforce Title II, so that only sections relating to broadband would apply to ISPs.
Deliberations about reclassification as common carriers (2014–2015)
Policy proposals (2014)
On February 19, 2014, the FCC announced plans to formulate new rules to resume enforcing net neutrality while complying with the court rulings. However, in the event, on April 23, 2014, the FCC reported a new draft rule that would permit broadband ISPs such as Comcast and Verizon to offer content providers, such as Netflix, Disney or Google, willing to pay a higher price, faster connection speeds, so their customers would have preferential access, thus reversing its earlier position and (so far as opinion outside the ISP sector generally agreed) would deny net neutrality.
Public response was heated, pointing out FCC chairman Tom Wheeler's past as a president and CEO of two major ISP-related organizations, and the suspicion of bias towards the profit-motives of ISPs as a result. Shortly afterwards, during late April 2014, the contours of a document leaked that indicated that the FCC under Wheeler would consider promulgating rules allowing Internet service providers (ISPs) to violate net neutrality principles by making it easier for Internet users to access certain content — whose owners paid fees to the ISPs (including cable companies and wireless ISPs) — and harder to access other content, thus undermining the traditional open architecture of the Internet. These plans received substantial backlash from activists, the mainstream press, and some other FCC commissioners. In May 2014, over 100 Internet companies — including Google, Microsoft, eBay, and Facebook — signed a letter to Wheeler voicing their disagreement with his plans, saying they represented a "grave threat to the Internet". As of May 15, 2014, the "Internet fast lane" rules passed with a 3–2 vote. They were then open to public discussion that ended July 2014.
On May 15, 2014, in the face of continuing intense focus and criticism, the FCC stated it would consider two options regarding Internet services: first, permit fast and slow broadband lanes, thereby compromising net neutrality; and second, reclassify broadband as a telecommunication service, thereby preserving net neutrality. The same day, the FCC opened a public comment period on how FCC rulemaking could best protect and promote an open Internet, garnering over one million responses, the most the FCC had ever received for rulemaking. The FCC proposal for a tiered Internet received heavy criticism. Opponents argued that a user accessing content over the "fast lane" on the Internet would find the "slow lane" intolerable in comparison, greatly disadvantaging any content provider who is unable to pay for "fast lane" access. They argued that a tiered Internet would suppress new Internet innovations by increasing the barrier to entry. Video providers Netflix and Vimeo in their comments filed with the FCC used the research of S.S. Krishnan and Ramesh Sitaraman that provided quantitative evidence of the impact of Internet speed on online video users. Their research studied the patience level of millions of Internet video users who waited for a slow-loading video to start playing. Users with faster Internet connectivity, such as fiber-to-the-home, demonstrated less patience and abandoned their videos sooner than similar users with slower Internet connectivity.
Opponents of the rules declared September 10, 2014, to be the "Internet slowdown". Participating websites were purposely slowed down to show what they felt would happen if the new rules took effect. Websites that participated in the Internet slowdown included Netflix, Reddit, Tumblr, Twitter, Vimeo and Kickstarter. The Economist described the "Battle for the Net [...] now casting the upcoming FCC decision as an epic clash between "Team Internet" (a plucky band of high-tech multi-millionaires) and "Team Cable" (a dastardly bunch of Big-ISP billionaires)." On November 10, 2014, President Obama stepped in, and recommended the FCC reclassify broadband Internet service as a telecommunications service in order to preserve net neutrality.
On November 12, 2014, future president Donald Trump tweeted, "Obama’s attack on the internet is another top down power grab. Net neutrality is the Fairness Doctrine. Will target conservative media."
2015 Open Internet Order
On January 16, 2015, Republicans presented legislation, in the form of a U. S. Congress HR discussion draft bill, that made concessions to net neutrality but prohibited the FCC from accomplishing that goal, or from enacting any further regulation affecting ISPs. Two weeks later, on January 31, AP News reported the FCC would present the notion of applying ("with some caveats") common carrier status to the Internet in a vote expected on February 26, 2015. Adoption of this notion would reclassify Internet service from one of information to one of telecommunications and ensure net neutrality, according to FCC chairman Tom Wheeler. On the day before the FCC vote, the FCC was expected to vote to regulate the Internet in this manner, as a public good, and on February 26, 2015, the FCC voted to apply common carrier of the Communications Act of 1934 and Section 706 of the Telecommunications Act of 1996 to the Internet. On the same day, the FCC also voted to preempt state laws in North Carolina and Tennessee that limited the ability of local governments in those states to provide broadband services to potential customers outside of their service areas. While the latter ruling affects only those two states, the FCC indicated that the agency would make similar rulings if it received petitions from localities in other states. In response to ISP and opponent views, the FCC chairman, Tom Wheeler, commented, "This is no more a plan to regulate the Internet than the First Amendment is a plan to regulate free speech. They both stand for the same concept."
Social media platforms had a large role on engaging the public in the debate surrounding net neutrality. Popular websites such as Tumblr, Vimeo, and Reddit also participated in the Internet slowdown on September 10, 2014, which the organization said was the largest sustained (lasting more than a single day) online protest effort in history. On January 26, 2015, popular blogging site Tumblr placed links to group Fight For The Future, a net neutrality advocacy group. The website displayed a countdown to the FCC vote on Title II on February 26, 2015. This was part of a widespread Internet campaign to sway congressional opinion and encourage users to call or submit comments to congressional representatives. Net neutrality advocacy groups such as Save the Internet coalition and Battle for the Net responded to the 2015 FCC ruling by calling for defense of the new net neutrality rules.
Challenges to the ruling
Following the publication of the FCC's ruling in 2015, several internet providers filed suit to challenge the FCC's ruling. The cases were combined into a single case, United States Telecom Ass'n v. FCC 825 F.3d 674 (2016), heard by a three-judge panel on the United States Court of Appeals for the District of Columbia Circuit in December 2015. The court issued its decision in June 2016, with the panel split 2-1 in favor of maintaining the FCC's ruling, stating that the Internet should be treated as a utility and not as a luxury. Internet providers signaled their intent to continue to challenge this ruling to the Supreme Court.
Several of the telecom groups petitioned the Supreme Court for writ of certiorari following the Court of Appeals ruling, ultimately falling under the case name Berninger v. Federal Communications Commission (Docket 17-489). The petition argued that the FCC did not have the power to issue the Open Internet Order, which required a re-interpretation of the Communications Act of 1934, under the Chevron deference. On November 5, 2018, seven members of the Court denied the petition, leaving in place the Court of Appeals ruling, which established that the FCC had the ability to reclassify Internet under Title II. Chief Justice John Roberts abstained due to financial conflict, and Justice Bret Kavanaugh abstained due to his previous involvement with the case history. Three Justices, Clarence Thomas, Samuel Alito, and Neil Gorsuch had recommended accepting the petition as to order a Munsingwear vacatur, in which the Appeals Court order would have been vacated, returned to that court, and have the case rendered moot due to the more recent 2018 FCC order that reversed the Open Internet Order.
Net neutrality and the Trump administration (2017)
Rollback of Obama-era rules
Shortly after his inauguration, President Donald Trump appointed Ajit Pai as the new chairman of the Federal Communications Commission. Pai had previously been nominated to fill one of the required Republican seats on the commission by President Obama under the recommendation of Senate Minority Leader Mitch McConnell. Pai, who objected to the 2015 Open Internet Order, quickly began to roll back some of the policies that had been implemented by the FCC during the Obama administration, and halted an investigation into the use of zero-rating by U.S. wireless providers. After his appointment, Pai stated that he planned to "modernize" FCC policies to "match the reality of the modern marketplace", but was unsure over whether the FCC would continue to enforce the net neutrality rules or Title II classification of broadband services.
In an interview on May 5, 2017, with NPR, Pai stated his argument against net neutrality enforcement rules to be only about focusing on fixing actual anti-competitive behavior that Internet providers show as opposed to just "regulating against hypothetical harms". Another argument he makes against this is that when the government inserts itself into the Internet's issues then it stifles its innovation and growth. He argues that it is impossible to predict all outcomes, and although some might be bad, it is not a good idea to put such strict restrictions on everyone when there are only a few companies who would harm consumers or innovators. He believes that strict net neutrality rules would "prohibit a number of pro-competitive business arrangements" and "would reduce investments".
In April 2017, it was reported that Pai had proposed that the net neutrality rules and Title II classifications be rolled back, that ISPs should instead "voluntarily" commit to the principles, and that violations of them should be enforced by the Federal Trade Commission instead of the FCC as unfair or deceptive business practices. On April 29, 2017, a clearer understanding of the latest net neutrality compromise proposal was described.
On May 18, 2017, the FCC voted to move forward with Pai's Notice of proposed rulemaking (NPRM) on "Restoring Internet freedom" by rolling back net neutrality regulations. The official "Comment Date" was July 17, 2017, with the "Reply Comment Date" being August 16, 2017.
The primary argument in this NPRM is that the Title II Order (on net neutrality) has pushed the major telecoms to reduce their capital expenditures (CapEx) in new infrastructure, thereby threatening the future of the nation. For this, they cite the approx. $1 billion reduction from 2014 to 2015 in CapEx reported by the United States Telecom Association and similar figures from industry consultant Hal Singer.
However, the accompanying plot of the USTelecom data cited (but not plotted) in the NPRM raises questions about whether the Title II Order generated a major reduction in Telecom Capex following the FCC's 2015 Title II Order on net neutrality: Roughly three quarters of the annual changes between 1996 and 2015 were larger. That change could easily be attributed to any number of other changes. The New York Times claimed that the majority on the FCC had to cherry-pick their data to support their conclusion. In her dissent to this NPRM, Commissioner Clyburn wrote, “I have yet to see a credible analysis that suggests that broadband provider capital expenditures have declined as a result of our 2015 Open Internet Order. ... Using the same logic that the NPRM uses, one could suggest that the FCC's classification of cable modem service as an information service in 2002 resulted in an even more precipitous drop in broadband provider investment.”
Falcon, Legislative Council for the Electronic Frontier Foundation claimed that no such claims of CapEx reductions have been made in official reports filed with the Securities and Exchange Commission (SEC), He said that major companies can be sued by investors who assert that they lost money because of misleading information in an SEC filing, and no such penalties apply to potentially misleading statements to Congress or the public.
Falcon's claim is supported by an analysis by Turner of Free Press in a report that includes 26 figures and tables, 21 of which were extracted from SEC filings and three of the remaining five came from the U.S. Census Bureau's Annual Capital Expenditures Survey. The change since the Title II Order was negative for only 5 of Turner's 24 tables, and the mean and median change over the 24 tables for which it seemed reasonable to extract a typical annualized percentage change were 8.1% and 5.2%, respectively.
Over 1,000 startups and investors signed an open letter to Pai opposing the proposal. The FCC received over 21 million comments from the public, though it has since become clear that millions of these comments were fraudulent.
To investigate the suggestion that some of the anti-net neutrality comments might be fraudulently using the names of real people without their knowledge, Fight for the Future created a web site called comcastroturf, claiming [on May 23, 2017], "Someone has submitted nearly half a million anti-net neutrality comments to the FCC, many of which appear to be completely fake — using stolen names and addresses", and inviting the reader to see if comments had been filed by someone else in his / her name. On May 23, Fight for the Future reported they had 'received a cease and desist order from Comcast's lawyers, claiming that Comcastroturf.com ... violates Comcast's “valuable intellectual property.” The letter threatens legal action if the domain is not transferred to Comcast's control. “This is exactly why we need Title II net neutrality protections that ban blocking, throttling, and censorship,” said Evan Greer, campaign director of Fight for the Future, “If Ajit Pai’s plan is enacted, there would be nothing preventing Comcast from simply blocking sites like Comcastroturf.com that are critical of their corporate policies”.'
In early May, Forbes reported that, "a group of activists, under the banner Battle for the Net, unveiled a campaign to generate letters to the Federal Communications Commission (FCC) to complain about zero rating offerings, or free data programs." Forbes claimed that, "All of the groups sponsoring this petition are funded by Google, who is likely upset because zero rating is a way for startups to circumvent Google’s demands. Zero rating eradicates the idea that paid ads on search engines are the only way to gain visibility online."
In early June, Battle for the Net, a coalition spearheaded by Fight for the Future, Free Press Action Fund, and Demand Progress, announced a "massive day of action" for July 12. Over 50,000 websites, including multinational corporations, participated in what Fight for the Future called "the largest online protest in history".
On June 15, 2017, Gigi Sohn, who had previously served as a top counselor to then-FCC chairman Tom Wheeler, published "4 steps to writing an impactful net neutrality comment (which you should do)":
- Write about yourself and how the net neutrality rules have affected you.
- Write about what you understand you are buying when you purchase broadband Internet access.
- Write about the choices you have (or don't) for broadband Internet access.
- Write about what role you think the FCC should have in overseeing the market for broadband Internet access.
On November 21, 2017, FCC chairman Pai unveiled plans to repeal the net neutrality policy in the United States. FCC commissioner Jessica Rosenworcel alleged on December 8 that the FCC was withholding evidence of fraud due to irregularities in its comment period and said the vote should be postponed until after an appropriate investigation.
Many organizations involved in the July 12 Day of Action planned an online protest for December 12. A vote was held on December 14, 2017, with a 3–2 party-line vote approving the repeal. On January 4, 2018, the current version of "Restoring Internet freedom" was made public, and was officially codified in the Federal Register on February 22, 2018, with the rules taking effect on June 11, 2018.
Criticism over public commenting period
The FCC's open comment period on the proposed language of "Restoring Internet Freedom" ran from May to August 2017 and received about 21.9 million comments, the largest influx of public comments seen by the FCC at that time; previously the FCC had gotten about 500,000 comments related to new media ownership rules in 2003 and 1.4 million comments from the Super Bowl XXXVIII halftime show controversy in 2004. As these comments were made available to the public, third-party groups began analyzing their contents.
One of the first studies, done on behalf of Broadband for America, which sought to repeal the Obama-era rules, found that 60% of the comments were in favor of retaining the current rules. However, the study also identified a large number of duplicate comments; if these were taken out, the unique comments favoring retaining the current rules far outweighed those seeking repeal, 1.2 million to 23,000. During and after the public commenting period, analysts reviewed the public comments and observed that a significant proportion of those using boilerplate language in support of repealing the rules had used names and addresses off known spam databases, and of those who were willing and able to be contacts asserts they left no such comment for the FCC. The FCC's system for public comments came under scrutiny: it uses an open application programming interface, along keys to that provided by the FCC, to submit comments, making it exploitable for mass-messaging.
In December 2017, the Pew Research Center issued its report in reviewing the comments, affirming that most of them were boilerplate messages, but representative of a mass campaigns attempting to sway public policy. The Pew report did recognize that several of the names were nonsensical, such as variations of "John Smith", or used "The Internet", and in other cases, thousands of messages were received at nearly the same time, potential evidence of a bot spamming in comments.
Another study evaluating all the comments submitted by the process was completed at Stanford University and published in October 2018. The Stanford study forced solely on unique comments, resulting in more than 800,000 comments that were called "semantic outliers" in contrast to boilerplate language, and in a detailed review of a sampling of one thousand of these, found that 99.7% favored retaining the Obama-era rules; these came from a geographically- and politically-diverse set of users. Shortly after this study, New York State's Attorney General Barbara Underwood, one of the critics of the FCC's process, issued a subpoena to over a dozen advocacy groups on both sides of the net neutrality debate to determine if they had a role in the massive number of fraudulent comments left at the FCC's system. Other states, as well as the Federal Bureau of Investigation, have issued similar subpeonas on the commenting period.
Both The New York Times and BuzzFeed had filed Freedom of Information Act requests to the FCC to gain information on the IP addresses used in the public comment period. The FCC denied the requests in December 2018 citing that releasing this information would leave the US vulnerable to a cyberattack, and Pai wrote in an attached statement that at least 500,000 of the comments were tied to Russian addresses, interfering in the process and trying to swing the public opinion in favor of keeping the Obama-era net neutrality rules.
States' legal challenge (2018)
Within minutes after the FCC vote on December 14, 2017, New York Attorney General Eric Schneiderman announced his intent to lead a multi-state lawsuit against the FCC to "stop illegal rollback of net neutrality". Washington Attorney General Bob Ferguson also stated his intent to sue.
Twenty-two states and the District of Columbia, led by New York's Schneiderman, filed a formal suit in the United States Court of Appeals for the District of Columbia Circuit against the FCC's ruling on January 16, 2018, calling it "arbitrary, capricious, and an abuse of discretion", and that the FCC mis-classified Internet access as a Title I service rather than Title II due to a "an erroneous and unreasonable interpretation" of laws around communication services. The initial filing was withdrawn in early February 2018 only due to the fact that the FCC's ruling had not yet been published within the Federal Register. Once the new FCC rules were published in February 2018, the states, District of Columbia, joined by the Mozilla Foundation and Vimeo, and several other state and local entities and advocacy groups, refiled the suit on February 22, 2018. The FCC issued its defense on October 12, 2018, requesting the Court to reject the lawsuit, as the lawsuit filed brings "no substantial reason to second-guess the commission’s decision to eliminate rules that the agency has determined are both unlawful and unwise". Initial court hearings were held on February 1, 2019. The FCC has requested a rescheduling of the hearings due to lack of resources created by the ongoing shutdown of the government, but this request was denied by the D.C. District Court. At the hearing before three judges, the states challenging the FCC not only discussed the issues related to net neutrality, but also charged the FCC with selectively review the public comments to come to its decision, thus "failed in its responsibility to engage in reasoned decision-making". ISPs argued the need to have an unregulated approach to providing high-quality services to their users, and that they would not be able to offer anything less than the full Internet to users given the competitive landscape.
US Senate vote (2018)
In January 2018, fifty United States senators had endorsed legislative action under the Congressional Review Act (CRA) to reverse the repeal of Title II net neutrality. While the effort was pushed by Democratic Senators, they had also gained support of three Republican Senators, Susan Collins, Lisa Murkowski, and John Kennedy. The motion to restore net neutrality passed in the Senate on May 16, 2018.
However, efforts for the House of Representatives to pass similar legislative action through the CRA had stalled; Democratic Representatives had attempted to gain sufficient signatures for a discharge petition to force the vote on the matter, but by June 2018, were still 46 signatures short, principally along partisan lines. While the revised FCC order repealing net neutrality has become official as of June 11, 2018, it had possible for the House to take action to reverse the decision, but even with CRA passage, the action would have to be signed into law by the President. However, the Congressional term ended before the House of Representatives could act, preventing the CRA challenge.
Save the Internet Act (2019)
Democratic Senators and Representatives presented the Save the Internet Act in both Houses of Congress in early March 2019. The Act, if passed, would rescind the 2017 FCC order to repeal the 2015 Open Internet Order, codify the 2015 Open Internet Order into law, and prevent the FCC from making any similar changes baring any further change in law. Republican lawmakers indicated they felt this was too extreme and were unlikely to give support to the bill.
California net neutrality law (2018)
While various states have enacted versions of net neutrality laws, these mostly have been working within the established parameters set by the FCC. In the FCC's rollback, the ruling includes language that asserts states do not have authority to override the FCC decision. Legal experts believe this clause to be flawed and would allow states to still override the FCC's decision on net neutrality, as the language divests the FCC from regulating broadband carriers, and thus would disallow them from preventing states from regulating them.
California had been working since 2015 to implement a stronger form of net neutrality than the previous 2015 FCC decision, including provisions that the FCC had not included in the 2015 language. Following the FCC's revoking of the prior net neutrality language, California's legislature has been working to push this into law, and by September 2018, Governor Jerry Brown signed into law SB 822, which is scheduled to go into effect on January 1, 2019. On the same day as it was signed, the US Department of Justice sued the state of California to stop the law, arguing that Congress granted the FCC the sole authority to create rules for broadband internet providers. A few days later, four lobbying groups that represent the major United States terrestrial and mobile communication carriers, United States Telecom Association, CTIA, NCTA and the American Cable Association, also sued the state of California for similar reasons as the Justice Department, claiming that the state does not have authority to regulate Internet providers. The state and the FCC announced on October 26, 2018 that they have reached agreement for California to hold off the enforcement of the law until pending legal action over the FCC's decision.
Timeline of significant events
- January 12, 2003 – Law Professor Tim Wu coins phrase Net Neutrality while discussing “competing contents and applications.”
- June 27, 2005 – Supreme Court decides that “communications, content, and applications are allowed to pass freely over the Internet's broadband pipes.”
- September 1, 2007 – Comcast begins interfering with Bittorrent traffic on its network.
- January 9, 2008 – FCC investigates Comcast traffic policy and treatment of Bittorrent traffic.
- August 9, 2010 – Google and Verizon try to cut deal to make larger parts of internet to be exempt from protection from the net neutrality rules from the FCC.
- December 21, 2010 – FCC creates Open Internet Rules which “established high-level rules requiring transparency and prohibiting blocking and unreasonable discrimination to protect Internet openness.”
- September 23, 2011 – The Federal Register publishes the Open Internet Rules.
- January 14, 2014 – The ruling in Verizon Communications Inc. v. FCC (2014) vacates significant parts of Open Internet Order 2010.
- May 13, 2014 – FCC releases new proposal including new rules on allowing “fast lanes and slow lanes online.”
- June 13, 2014 – FCC investigates large companies such as Netflix for interconnection policies.
- July 15, 2014 – FCC opens up on Public Knowledge for public comments, received 1.1 million comments on the first day. Determined that "less than 1% of comments were clearly opposed to net neutrality."
- September 15, 2014 – FCC receives 3.7 million comments in total. “The FCC's server crashes again as millions more people, companies, and advocacy organizations weigh in on the open internet rules.”
- February 26, 2015 – FCC passes the Title II Net Neutrality Rules. “In a 3–2 party-line vote, the FCC passes open internet rules applying to both wired and wireless internet connections grounded in Title II authority.”
- June 12, 2015 – Net neutrality rules go into effect.
- June 14, 2016 – New rules are upheld by the United States Court of Appeals for the District of Columbia Circuit.
- January 23, 2017 – President Trump names Ajit Pai as new FCC chairman.
- April 26, 2017 – FCC Chairman Ajit Pai announces plan to reverse Title II regulations.
- May 1, 2017 – A U.S. appeals court declined to reconsider a rehearing of the FCC's net neutrality case.
- May 18, 2017 – The FCC voted 2–1 to start rolling back net neutrality regulations; this vote marked the beginning of a lengthy process required to modify the existing rules, and it did not actually change said rules.
- June 6, 2017 – Amazon, Reddit, Netflix and many other internet organizations announce that they will hold a simultaneous "Day of Action to Save Net Neutrality" on July 12 in a final attempt to convince the Republican-controlled FCC to keep the current net neutrality rules.
- July 12, 2017 – The net neutrality 'day of action' occurred, involving many major companies and the original founder of the Web, Tim Berners-Lee.
- July 17, 2017 – Comment Date for "Restoring Internet freedom" NPRM.
- August 30, 2017 – Reply Comment Date for "Restoring Internet freedom" NPRM.
- November 21, 2017 – FCC chairman Ajit Pai unveils plans to repeal the net neutrality policy in the United States. The five person FCC vote for repeal is scheduled for December 14, 2017.
- December 14, 2017 – The FCC votes 3 to 2, along party lines, in favor of reversing Title II regulations.
- February 22, 2018—The "Restoring Internet Freedom" ruling was published in the Federal Register, giving opponents of the FCC's decision 60 legislative days from that date to nullify it under the Congressional Review Act (CRA).
- May 16, 2018 – The US Senate passes CRA resolution on a 52-47 vote in an attempt to stop the repeal from going forward.
- June 11, 2018 – With the US House of Representatives failing to act under the CRA, the repeal of the FCC's rules took effect.
- September 30, 2018 - California passed regulations for Net Neutrality protections. The Trump administration swiftly filled a lawsuit stating that the regulations "interfere with the federal government's approach to the Internet"
Many broadband operators imposed various contractual limits on the activities of their subscribers. In the best known examples, Cox Cable disciplined users of virtual private networks (VPNs) and AT&T, as a cable operator, warned customers that using a Wi-Fi service for home networking constituted "theft of service" and a federal crime. Comcast blocked ports of VPNs, forcing the state of Washington, for example, to contract with telecommunications providers to ensure that its employees had access to unimpeded broadband for telecommuting applications. Other broadband providers proposed to start charging service and content providers in return for higher levels of service (higher network priority, faster or more predictable), creating what is known as a tiered Internet.
In 2005, North Carolina ISP Madison River Communications blocked the voice-over-internet protocol (VOIP) service Vonage. The FCC issued a Letter of Inquiry to Madison River, initiating an investigation. To avoid litigation, Madison River agreed to make a voluntary payment of fifteen thousand dollars and agreed to not block ports used for VoIP applications or otherwise prevent customers from using VoIP applications. According to the consent decree, "The Parties agree that this Consent Decree does not constitute either an adjudication on the merits or a factual or legal finding regarding any compliance or noncompliance with the requirements of the Act and the Commission’s orders and rules. The Parties agree that this Consent Decree is for settlement purposes only."
In September 2012, a group of public interest organizations such as Free Press, Public Knowledge and the New America Foundation's Open Technology Institute filed a complaint with the FCC that AT&T was violating net neutrality rules by restricting use of Apple's video-conferencing application FaceTime on cellular networks to those who have a shared data plan on AT&T, excluding those with older, unlimited or tiered data plans. The FCC response noted that "Although this report does not attempt to engage in any legal interpretations of the Open Internet Order, we do note that the Order treats these mobile broadband networks differently from traditional fixed networks. While both fixed and mobile broadband providers must disclose their management practices, mobile broadband providers have greater latitude for blocking devices and applications (as long as they do not compete with the provider's own voice or video telephony services) and discriminating in how they serve traffic, in accordance with reasonable network-management practices."
Arguments associated with net neutrality regulations came into prominence in mid-2002 with nine different bills introduced on this issue between 2006 and 2013.
There has been extensive debate about whether net neutrality should be required by law in the United States. Debate over the issue predates the coining of the term. Advocates of net neutrality have raised concerns about the ability of broadband providers to use their last mile infrastructure to block Internet applications and content (e.g. websites, services, and protocols), and even to block out competitors. While opponents claim net neutrality regulations would deter investment into improving broadband infrastructure and try to fix something that isn't broken.
Support of net neutrality
Organizations that support net neutrality come from widely varied political backgrounds and include groups such as MoveOn.org, Free Press, Consumer Federation of America, AARP, American Library Association, Public Knowledge, the Media Access Project, the Christian Coalition, TechNet, the American Civil Liberties Union, the Electronic Frontier Foundation, Greenpeace, Tumblr, Kickstarter, Vimeo, Wikia, Mozilla Foundation, NEA. and others.
Prominent supporters of net neutrality include Vinton Cerf, co-inventor of the Internet Protocol; Tim Berners-Lee, creator of the World Wide Web; law professor Tim Wu; Netflix CEO Reed Hastings; Tumblr founder David Karp; Free Press President Craig Aaron;
Outside of the US several countries have removed net neutrality protocols and have started double charging for delivering content (once to consumer and again to content providers). This equates to a toll being required for certain internet access, essentially limiting what is available to all people, in particular low income households.
Large already well established companies may not be hurt by the cost increase that providers such as Comcast intend to levy upon them, but it would permanently stifle small businesses and the internet's ability to encourage start-ups. Many have pointed out that sites such as Facebook, Google, and Amazon would not have been able to survive if net neutrality hadn't been in place. Concerns abound as to what kind of long term damage would be inflicted on future website innovations, including educational content such as MIT's OpenCourseWare which is a free website offering online video lectures to the public.
Barbara Stripling, the president of the American Library Association states: "School, public and college libraries rely upon the public availability of open, affordable Internet access for school homework assignments, distance learning classes, e-government services, licensed databases, job-training videos, medical and scientific research, and many other essential services, we must ensure the same quality access to online educational content as to entertainment and other commercial offerings."
Previously existing FCC rules do not prevent telecommunications companies from charging fees to certain content providers in exchange for preferential treatment (the so-called "fast lanes"). Neutrality advocates Tim Wu and Lawrence Lessig have argued that the FCC does have regulatory power over the matter, following from the must-carry precedent set in the Supreme Court case Turner Broadcasting v. Federal Communications Commission.
Net neutrality proponents argue that telecom companies seek to impose a tiered service model in order to control the pipeline and thereby remove competition, create artificial scarcity, and oblige subscribers to buy their otherwise noncompetitive services. Many believe net neutrality to be primarily important for the preservation of current internet freedoms; a lack of net neutrality would allow Internet service providers, such as Comcast, to extract payment from content providers like Netflix, and these charges would ultimately be passed on to consumers.
Civil rights organizations, such as the Color of Change, the National Hispanic Media Coalition, and more argue that net neutrality is also important for communities of color because it allows for them to tell their own stories and “organize for racial and social justice." Much of the mainstream media does not showcase these minority people, so these organizations believe that it is important to open the Internet into giving these people some sort of broadcast station. By doing so, their voices can be heard, because beforehand ISPs could “block unpopular speech and prevent dissident voices from speaking freely online." As a result, net neutrality has become a social controversy, not just a technological one.
In May 2014, some websites admitted to inserting code that slowed user access to their site from known FCC IP addresses, as a protest on the FCC's position on net neutrality.
On his show Last Week Tonight, Oliver took on the issue of net neutrality for the first time in 2014, in the show's first season. The episode went viral with 13 million views on YouTube and prompted 45,000 comments on the FCC website. At the 2016 Consumer Electronics Show, former FCC Chairman Tom Wheeler cited Oliver's episode as a turning point in the issue of net neutrality. “John Oliver took the ultimate arcane issue, Title II, and made it something that got people interested. And that’s good.” Oliver returned to the issue of net neutrality on his May 7, 2017, episode in response to Chairman Pai's promise to get rid of the regulation. He prompted viewers to once again comment on the FCC website by buying the domain gofccyourself.com, which garnered 1.6 million contributions.
Opposition to net neutrality
Opponents to net neutrality include FCC Commissioner Ajit Pai, the FreedomWorks Foundation, the Reason Foundation, Multiple technology companies, VOIP pioneers Daniel Berninger and Jeff Pulver, Electronic Frontier Foundation founder John Perry Barlow. and Citizens Against Government Waste.
Prominent opponents also include Netscape founder and venture capitalist Marc Andreessen, co-inventor of the Internet Protocol Bob Kahn, PayPal founder and Facebook investor Peter Thiel, MIT Media Lab founder Nicholas Negroponte, Internet engineer and former Chief Technologist for the FCC David Farber, and Nobel Prize economist Gary Becker.
Organizations and companies that oppose net neutrality regulations include several major technology hardware companies, cable and telecommunications companies, hundreds of small internet service providers, various think tanks, several civil rights groups, and others.
Opponents argue that net neutrality would benefit industry lobbyists, and not consumers due to the potential of regulatory capture with policies that protect incumbent interests. Former hedge fund manager turned journalist Andy Kessler has argued, the threat of eminent domain against the telecommunication providers, instead of new legislation, is the best approach by forcing competition and better services. One print ad frames the Hands Off the Internet message in pro-consumer terms. "Net neutrality means consumers will be stuck paying more for their Internet access to cover the big online companies' share," the ad claims.
In November 2005, Edward Whitacre Jr., then chief executive officer of SBC Communications, stated "there's going to have to be some mechanism for these [Internet upstarts] who use these pipes to pay for the portion they're using", and that "The Internet can't be free in that sense, because we and the cable companies have made an investment," sparking a furious debate. SBC spokesman Michael Balmoris said that Whitacre was misinterpreted and his comments only referred to new tiered services. Net neutrality laws are generally opposed by the cable television and telephone industries.
Net neutrality opponents such as IBM, Intel, Juniper, Qualcomm, and Cisco claim that net neutrality would deter investment into broadband infrastructure, saying that "shifting to Title II means that instead of billions of broadband investment driving other sectors of the economy forward, any reduction in this spending will stifle growth across the entire economy. Title II is going to lead to a slowdown, if not a hold, in broadband build out, because if you don’t know that you can recover on your investment, you won’t make it." Others argue that the regulation is "a solution that won’t work to a problem that simply doesn’t exist".
Critics of net neutrality argue that data discrimination is desirable for reasons like guaranteeing quality of service. Bob Kahn, co-inventor of the Internet Protocol, called the term net neutrality a slogan and opposes establishing it, but he admits that he is against the fragmentation of the net whenever this becomes excluding to other participants. Vint Cerf, Kahn's co-founder of the Internet Protocol, explains the confusion over their positions on net neutrality, "There’s also some argument that says, well you have to treat every packet the same. That’s not what any of us said. Or you can’t charge more for more usage. We didn’t say that either."
Alternative FCC proposals
An alternate position was proposed in 2010 by then-FCC Commissioner Julius Genachowski, which would narrowly reclassify Internet access as a telecommunication service under Title Two of the Communications Act of 1934. It would apply only six common carrier rules under the legal principle of forbearance that would sufficiently prevent unreasonable discrimination and mandate reasonable net neutrality policies under the concept of common carriage. Incumbent ISP AT&T opposed the idea saying that common carrier regulations would "cram today's broadband Internet access providers into an ill-fitting 20th century regulatory silo" while Google supported the FCC proposal "In particular, the Third Way will promote legal certainty and regulatory predictability to spur investment, ensure that the Commission can fulfill the tremendous promise of the National Broadband Plan, and make it possible for the Commission to protect and serve all broadband users, including through meaningful enforcement".
In October 2014, after the initial proposal was shot down, the FCC began drafting a new proposal that would take a hybrid regulatory approach to the issue. Although this alternative has not yet been circulated, it is said to propose that there be a divide between "wholesale" and "retail" transactions. In order to illustrate clear rules that are grounded by law, reclassification of Title II of the Communications Act of 1934 will be involved as well as parts of Section 706 of the Telecommunications Act of 1996. Data being sent between content provider and ISPs will involve stricter regulations compared to transactions between ISP's and consumers, which will involve more lax parameters. Restrictions on offering a data fast lane will be enforced between content providers and ISPs to avoid unfair advantages. This hybrid proposal has become the most popular solution among the three options that FCC has reported. However, ISPs, such as AT&T who has already warned the public via tweet "any use of Title II would be problematic", are expected to dispute this solution. The official proposal was rumored to become public by the end of 2014.
Opinions cautioning against legislation
In 2006 Bram Cohen, the creator of BitTorrent, said "I most definitely do not want the Internet to become like television where there's actual censorship... however it is very difficult to actually create network neutrality laws which don't result in an absurdity, like making it so that ISPs can't drop spam or stop... attacks."
In June 2007, the US Federal Trade Commission (FTC) urged restraint with respect to new regulations proposed by net neutrality advocates, noting the "broadband industry is a relatively young and evolving one," and given no "significant market failure or demonstrated consumer harm from conduct by broadband providers" such regulations "may well have adverse effects on consumer welfare, despite the good intentions of their proponents." The FTC conclusions were questioned in Congress in September 2007, when Sen. Byron Dorgan, D-N.D., chairman of the Senate interstate commerce, trade and tourism subcommittee, told FTC Chairwoman Deborah Platt Majoras that he feared new services as groundbreaking as Google could not get started in a system with price discrimination.
In 2011 Aparna Watal, a legal officer at an Internet company named Attomic Labs, has put forward three points for resisting any urge "to react legislatively to the apparent regulatory crisis". Firstly, "contrary to the general opinion, the Comcast decision does not uproot the Commission's authority to regulate ISPs. Section 201(b) of the Act, which was cited as an argument by the Commission but not addressed by the Court on procedural grounds, could grant the Commission authority to regulate broadband Internet services where they render "charges, practices and regulations for, and in connection with" common carrier services unjust and unreasonable." Secondly, she suggests, it is "undesirable and premature to legislatively mandate network neutrality or for the Commission to adopt a paternalistic approach on the issue ... [as] there have been few overt incidents to date, and the costs of those incidents to consumers have been limited." She cites "prompt media attention and public backlash" as effective policing tools to prevent ISPs from throttling traffic. She suggests that it "would be more prudent to consider introducing modest consumer protection rules, such as requiring ISPs to disclose their network management practices and to allow for consumers to switch ISPs inexpensively, rather than introducing network neutrality laws." "While by regulating broadband services the commission is not directly regulating content and applications on the Internet", content will be affected by the reclassification. "The different layers of the Internet work in tandem with each other such that there is no possibility of throttling or improving one layer's performance without impacting the other layers. ... To let the Commission regulate broadband pipelines connecting to the Internet and disregard that it indirectly involves regulating the data that runs through them will lead to a complex, overlapping, and fractured regulatory landscape in the years to come."
As of 2006 the debate over "neutrality" did not yet capture some dimensions of the topic; for example, whether voice packets should get higher priority than packets carrying email or whether emergency services, mission-critical, or life-saving applications, such as tele-medicine, should get priority over spam.
Alternatives to cable and DSL
Cable companies have lobbied Congress for a federal preemption to ban states and municipalities from competing and thereby interfering with interstate commerce. However, there is current Supreme Court precedent for an exception to the Commerce Power of Congress for states as states going into business for their citizens.
In 2006 it was proposed that neither municipal wireless nor other technological solutions such as encryption, onion routing, or time-shifting DVR would be sufficient to render possible discrimination moot.
Utility company restrictions
EPB, the municipal utility serving Chattanooga, Tennessee, petitioned the FCC to allow them to deliver internet to communities outside of the 600-square mile area that they service. A similar petition was made by Wilson, North Carolina. According to FCC officials, some residents who lived just outside the service areas of the Chattanooga and Wilson utilities then had no broadband service available. One of the two February 26, 2015, rulings set aside those states' restrictions on municipal broadband, although legal challenges to the FCC's authority to do so were seen as likely.
Individual states have taken action to generally uphold net neutrality either through proposed legislation or through by requiring state agencies to establish contracts with Internet providers that offer net neutral-services. The status as of February 26, 2018, of executive orders and pending action at state levels is summarized as follows:
|Entity||Executive order||Suing the FCC||Other action||State bill number||Description||Current status|
|California||2018-01-16||2018-09-30||SB-822||California Internet Consumer Protection and Net Neutrality Act of 2018||Enforcement of law suspending pending result of states' legal case against FCC.|
|District of Columbia||2018-01-16|
|Kansas||2018-02-07||HB 2682||state contracts|
|Nebraska||2018-01-05||Legislative Bill 856||regulation|
|New Mexico||2018-01-16||2017-12-21||SB 39||regulation|
|New York||2018-01-24||2018-01-16||2018-01-03||S07175||state contracts|
|2018-01-03||S07183||state & local contracts|
|2017-12-22||S08882||state & local contracts|
|2018-01-18||A09057||state & local conracts|
|New York City||2018-01-22||request for information|
|North Carolina||2018-01-16||2018-01-11||draft legislation|
|Oregon||2018-01-16||2018-01-21||ballot initiative drive|
|Pennsylvania||2018-01-16||2018-01-26||possible executive order|
|2018-02-09||SB 1033||state & local contracts|
|Rhode Island||2018-01-16||2018-01-10||H 7076||state & local contracts|
|2018-01-11||S 2008||state & local contracts|
|South Dakota||2018-02-06||SB 195||state contracts|
|Tennessee||2018-01-23||SB 1756||state & local contracts|
|2018-01-23||HB 1755||state & local contracts|
|Vermont||2018-02-15||2018-01-16||2018-01-31||H.680||state contracts||Enforcement of law, and legal challenge of law voluntarily halted until completion of states' legal case against FCC.|
|Washington (state)||2018-01-16||2017-12-13||HB 2282||regulation|
|2018-01-17||SB 6446||state contracts|
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State of New York, State of California, State of Connecticut, State of Delaware, State of Hawaii, State of Illinois, State of Iowa, Commonwealth of Kentucky, State of Maine, State of Maryland, Commonwealth of Massachusetts, State of Minnesota, State of Mississippi, State of New Mexico, State of North Carolina, State of Oregon, Commonwealth of Pennsylvania, State of Rhode Island, State of Vermont, Commonwealth of Virginia, State of Washington, and the District of Columbia Petitioners, v. Federal Communications Commission, and United States of America, Respondents.
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In the US, much of the population has essentially no choice over who to buy broadband from, with local monopolies enshrined in law and a nationwide duopoly providing access to high-speed connections for three quarters of the nation.
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