Attack on Net Neutrality, What Gives?
Los Angeles Daily Journal
On March 9, the House Commerce Subcommittee on Communications and Technology voted to repeal the Federal Communications Commission's (FCC) recently enacted net neutrality rules just a few weeks after the House passed a resolution to defund the commission's controversial initiative.
These recent congressional attacks on the FCC's net neutrality plan come on the heels of a lawsuit filed by Verizon and Metro PCS in January this year challenging the FCC's new rules regulating net neutrality.
Why is there so much resistance to something as simple as net neutrality? Why is something that is relatively simple and advocated by the executive branch becoming so complicated and divisive in both our legislative and judicial branches?
These questions can be answered by looking at the background of this controversial policy and the current state of a two-prong attack on these new rules by both a Republican-controlled Congress and corporate Internet service providers (ISPs).
Fundamentally, net (short for "network") neutrality is the idea that the Internet works best when ISPs deliver every Internet site's traffic without discrimination. At its core, net neutrality demands ISP equality in the treatment of consumers who pay for the same or a greater quality of service, permitting peer-to-peer communication in any platform of the consumers' choosing, regardless of the amount of content transmitted or bandwidth utilized.
In the recent past, the FCC has embarked on a campaign to enforce this principle of equality as if it were a constitutionally guaranteed fundamental right. A counterpush to this campaign was largely supported by those holding allegiance to big business and the notion that government regulation should be minimal in the private sector. This has made the relatively straightforward debate about net neutrality a muddled mess.
In December 2010, the FCC approved compromise net neutrality rules that forbid the nation's largest cable and DSL ISPs from blocking or slowing online services, while leaving wireless companies with much more latitude. After years of contentious debate that polarized the net neutrality issue, FCC chief Julius Genachowski made good on President Barack Obama's campaign pledge to strengthen rules governing the nation's ISPs. The new rules were passed 3-2 along party lines.
Many viewed the FCC's new rules as a milestone in the multiyear battle over net neutrality. Supporters of the new rules argued, among other things, that without net neutrality - which ensures that everyone has open access to the Internet – revolutionary Web startups such as Google, Facebook and Twitter may never have gotten off the ground.
The new rules force ISPs to be transparent about how they handle network congestion, prohibit them from blocking traffic such as Skype on wired networks, and outlaw "unreasonable" discrimination on those networks - meaning they cannot put a competing online video service in the slow lane to benefit their own video services.
Genachowski said the new rules would advance the administration's goal of making America's broadband system the "freest and fastest in the world." But the reality is that both sides of the controversy were not pleased with the new rules, with the possible exception of the telecom giants, who initially appeared to greet the new rules with approval. That did not last long.
In January 2011, Verizon was the first to come forward with a lawsuit challenging the FCC's new rules. Verizon filed the lawsuit in Court of Appeals for the District of Columbia Circuit. Michael Glover, Verizon's senior vice president and deputy general counsel, said in a statement that "Verizon is committed to preserving an open Internet, but the lawsuit comes after a 'careful review' of the FCC order."
"We are deeply concerned by the FCC's assertion of broad authority for sweeping new regulation of broadband networks and the Internet itself," he added. "We believe this assertion of authority goes well beyond any authority provided by Congress and creates uncertainty for the communications industry, innovators, investors, and consumers."
Aparna Sridhar, policy counsel at Free Press, a media reform group that has criticized the FCC's actions as too weak, said: "It's ironic that Verizon is unhappy with rules that were written to placate it, and it's now clear that it will settle for nothing less than total deregulation and a toothless FCC in the relentless pursuit of profit."
On Jan. 25, wireless service operator Metro PCS filed a similar lawsuit to overturn the FCC's net neutrality rules. The company has been the subject of criticism by consumer groups that say Metro PCS' 4G pricing plans purposely block certain applications, which violates the FCC's Internet access rules. "Metro PCS' concerns regarding the jurisdictional basis for the net neutrality rules, the recent appeal filed by Verizon, and challenges raised by some proponents of net neutrality to Metro PCS' recent 4G rate plans, have caused Metro PCS to appeal the FCC's net neutrality order to ensure that the concerns of competitive wireless carriers, like Metro PCS, are addressed," said Roger D. Linquist, Metro PCS' president and CEO.
Following the lawsuit challenge by Verizon and Metro PCS, the new House Commerce Subcommittee on Communications and Technology voted to overturn the FCC's regulations by a 15-8 vote, split along party lines. The leaders of the subcommittee contend that the regulations would stymie investment and network development, since companies would be barred from profiting off of premium service charges, and would be unable to favor traffic from their business partners. (House Joint Resolution (H.J. Res. 37), a "Resolution of disapproval that reverses the FCC's net neutrality rules.")
Additionally, Subcommittee Chairman Greg Walden (R-Ore.), introduced H.J. Res. 37 on Feb. 16, 2011. It provides: "Resolved by the Senate and House of Representatives...that Congress disapproves the rule submitted by the Federal Communications Commission relating to the matter of preserving the open Internet and broadband industry practices, and such rule shall have no force or effect."
At the start of the hearing, Walden said, "I have introduced the resolution under the Congressional Review Act, which provides Congress with an expedited process to nullify agency rules." Walden said halting the FCC's regulation is necessary because "we have an open and thriving Internet thanks to our historical hands-off approach. The Internet works pretty well; it's the government that doesn't." In addition, he said the FCC adopted the rules regulation the Internet "without statutory authority to do so."
Walden later stated that the FCC "has exceeded its authority," and it is holding additional regulation "over the heads" of industry affected by the open Internet regulations. That is why few Internet companies have come out against the regulation, he added.
The lawsuits filed by Verizon and MetroPCS earlier this year against the FCC's net neutrality rules and recent congressional action against the FCC's new rules fall into a growing antiregulatory fervor that is building momentum. The subcommittee's resolution and the lawsuits risk stripping away the FCC's compromised and negotiated attempt to ensure that the Internet remains open. It is important to note that the compromise was reached after months of negotiations with Verizon and other companies.
The effect of the lawsuits could be to deregulate ISPs - allowing them to treat their own content better than that of rivals, and block content that they do not like or they compete with for customers. Verizon and Metro PCS have about 60 percent of wireless subscribers. And 80 percent of Americans live in areas with only two wireline broadband providers. In a market with such slender competition, consumers are likely to be subjected to the business decisions of few, or even only one, ISP.
The future at this juncture for American consumers is either a continuation of the open broadband they have come to expect - in which they can view any content from sources big and small - or a carefully controlled Internet such as cable television, where ISPs will decide what their customers can see and at what price. Which would you rather have?