Part I generated some feedback that I'd like to address. Sorry, this is a bit "outline-y" I didn't have time to fully flesh everything out. Primarily two points:
- With Title II gone, where else in the law is net neutrality protected?
- Isn't the debate broader than just the legalities?
I think all sides agree that if there were a true free market for internet access, net neutrality would result naturally, and heavy regulation would not be necessary to enforce it. So....
Where else is net neutrality in the law?
47 CFR Part 8 -
https://www.law.cornell.edu/cfr/text/47/part-8
This is where Section 706 of the Telecommunications Act of 1996 is codified. This is the part of the regulations that the FCC's proposed order would modify. Part 8.11 would be removed. All the rest would remain, including:
- Sec. 8.5 - No Blocking
- Sec. 8.6 - No throttling
- Sec. 8.9 - No paid prioritization
These still apply to ISPs relationship with end-users. ISPs are in a difficult position. The actually have two sets of "customers." End users on one side, and "edge providers" on the other (edge providers are Facebook, Google, Netflix, etc. - content companies).
47 CFR enforces net neutrality between ISPs and end users. That's not changing. The "little guy" is protected. Title II was an attempt to do the same between ISPs and edge providers. (See the discussion below about this issue). TL;DR - net neutrality is being co-opted by large edge providers to avoid having to invest in infrastructure.
Anti-trust
Anti-trust law is well established with over 100 years of court precedents. The Title II reclassification barred anti-trust lawsuits against ISPs. This FCC change restores FTC oversight and makes ISPs subject to Anti-trust law again. Many of the provisions of Title II mirror Anti-trust law. This makes sense because Title II was designed to regulate a telephone monopoly. The following are prohibited by anti-trust law. But most importantly, they are illegal only when a free market does not exist. This is the proper way to punish exploitation and not innovation.
- Price discrimination - Charging different prices to different customers (in our case either end users or content providers like Netflix, or YouTube. (ISPs could charge more if it reflected increased costs, just as they can still throttle traffic under Title II for "network management")
- Tying - requiring the purchase of one product to get another. It's illegal if it harms competition.
- Group Boycotts - All ISPs couldn't get together and block Netflix for example. Or a monopoly ISP could also not do the same thing on its own.
- Market division - Charter and Comcast could not agree to divide the country (or a city, or state) between them to avoid competition, for example.
Quick read on Anti-trust:
https://www.ftc.gov/tips-advice/competition-guidance/guide-antitrust-laws/antitrust-laws
Section 706 of the Telecommunications Act of 1996.
Section 706 allows the FCC and each state communications commission to promote a competitive market and spread of broadband access to all. Specifically, the FCC must:
.... encourage the deployment on a reasonable and timely basis of advanced telecommunications capability to all Americans.... by utilizing, in a manner consistent with the public interest, convenience, and necessity, price cap regulation, regulatory forbearance, measures that promote competition in the local telecommunications market, or other regulating methods that remove barriers to infrastructure investment.
The "Advanced Telecommunications Capability" mentioned is defined:
The term “advanced telecommunications capability” is defined, without regard to any transmission media or technology, as high-speed, switched, broadband telecommunications capability that enables users to originate and receive high-quality voice, data, graphics, and video telecommunications using any technology.
So, the FCC has a duty to promote deployment of broadband that allows users to send and receive high-quality voice, data, graphics, and video telecommunications using any technology. Sounds a lot like net neutrality.
In fact, the court in Verizon v. FCC struck down the FCCs original Open Internet Order, BUT agreed that the FCC has great authority under 706, and could promote net neutrality rules using 706 without Title II if done properly. The FCC began to craft such an order to comply with the court's requirements when they shifted gears and decided to use Title II instead.
So this approach is court tested and approved. Title II classification is not. It could, and likely would be challenged by the ISPs.
Other issues:
Net neutrality will be ineffective anyway.
Net neutrality is a lot like pure "democracy" or pure "libertarianism" - it's a great ideal and a very popular principle, but it doesn't survive contact with the real world very well.
Title II contains a provision allowing throttling, traffic shaping and blocking for purposes of network management. Optimizing and maintaining service on the network. This exception is HUGE. Almost anything can easily be justified as necessary for network management.
Consider Netflix and other streaming video services. They are the 800-pound gorilla in the net neutrality debate. On peak days, Netflix is 37% of all internet traffic in the United States. All other traffic will be crowded out if providers don't throttle or shape Netflix. Add other streaming video, and it's 70% of traffic. Throttling is happening right now, I guarantee. Title II and net neutrality allows that.
More info on streaming video:
Net neutrality is increasingly unnecessary
The internet today doesn't operate like the internet of 15 years ago. Net neutrality rules are becoming less necessary.
In the past, The internet was largely point-to-point and unencrypted. Blocking Ted's website was a simple matter of knowing Ted's IP address. The rise of several technologies has made it nearly impossible for ISPs to block traffic in any granular way. The "cloud", VPNs, HTTPS, and CDNs (Content Distribution Networks).
- The "cloud" - many companies host their services on Amazon, Google, or Microsoft's cloud infrastructure. From the ISP's perspective, they see traffic from Amazon's cloud. They can't tell if it's Ted's website, or some other service. And they can't block it without affecting other traffic from Amazon.
- HTTPS - encrypts traffic between content providers and the end user. So the ISP can't tell if you're checking email, a website, or listening to audio. If you add a VPN, then your location is masked too.
- Lastly, CDNs - are similar to the cloud. An evil ISP can't tell what content you're downloading or from whom.
Other issues do remain unsolved, and are certainly open for debate.
The largest ISPs are also content providers. There is a conflict of interest there. What's the Net Neutrality answer: slow their own content? Do we separate ISP business from content? This is the real issue. Most examples of net neutrality violation I see mentioned are ISPs favoring their own content. I think it's a legitimate debate to have.
Are edge providers customers too? This isn't a typical two-party transaction. On the internet, the edge providers generate the demand, but don't pay for the traffic. The end users pay. This is why Google, Facebook, etc. favor Title II regulation. It allows them to keep access to the ISP networks without helping foot the bill. In a real sense, Facebook, etc. have gotten net neutrality advocates to side with them in the battle between massive corporate edge providers and massive corporate ISPs. Far from protecting the "little guy," net neutrality is a huge boon to Google, Facebook, Netflix, and other large content companies. It saves them from having to share infrastructure costs, despite being massive users of the infrastructure of others.
