The Free Internet Project

Revisiting the Net Neutrality debate in U.S. ahead of 2020 Election

With the COVID-19 pandemic, people are in their homes more than ever. Whether it be jobs, school, or recreation, the internet is being used more than ever before, as the New York Times reported. The pandemic has pushed society to rely on online technologies, including professional video calls, virtual interviewing, and complex educational courses completely online. Though most of us take the internet’s speed and extensive supply of content on almost all topics for granted, the rules for Internet access providers are controversial. 

The main area of contention is whether the government should require Internet access providers (e.g., Comcast, Verizon) to abide by principles of net neutrality. Net neutrality “is the principle that Internet Service Providers (ISPs) equitably provide consumer access to any legal online content and application, regardless of the source.” Thus, under net neutrality, ISPs including entities like Verizon, AT&T, and Comcast Xfinity “cannot block or slow legal content flowing through their networks" or show favoritism to some websites over others. When net neutrality is discussed by the government and ISPs there are three main actions that are in question: blocking, throttling, and paid prioritization. Blocking refers to an ISP’s ability to prevent its customers from accessing content from legal sources. For example, if Verizon intentionally blocks its customers from seeing the AT&T website. Throttling is when an ISP slows or interferes with the transmission of content a customer is searching for. For example, if AT&T only allows a customer to see half of a website or makes the loading so slow that the customer chooses not to go on it. Throttling tends to go hand-in-hand with the third action called paid prioritization which is when an ISP charges additional fees to content providers if they want their content to be quickly delivered to their customers. For example, if AT&T charges CNN a prioritization fee then AT&T will ensure CNN can be quickly accessed. Also, this could include throttling of competing news outlets’ websites and slowing down customers’ access to them in order to prioritize CNN.

FCC’s Regulatory Structure

The Federal Communications Commission (FCC) is the government entity that monitors the ISPs’ actions and they strategize how best to protect consumers in the internet space. The level of transparency ISPs have to meet in relation to blocking, throttling, and paid prioritization depends on what the FCC requires. The president of the United States chooses who become the chairman of the FCC, therefore the entity’s actions tend to be far from apolitical and change depending on who is in office.

The initial rules governing the telecommunications world were established in 1934 with the Communications Act. The FCC was given the responsibility of overseeing and regulating “telephone, telegraph, and radio communication.” Later, this was updated to technologies such as cable, broadcasting, and satellite television. Within the Communications Act, two regulatory frameworks were established: Information Services and Telecommunication Services (also known as Common Carriers). Information services are “platforms that generate, store, transform, retrieve, and process information via telecommunications.” Information services are given lighter regulations as compared to common carriers. Common carriers are “services transmitting energy for hire, including telecommunication services.” These carriers have historically faced more regulation similar to gas, electric, and telephone providers. These regulations include limitations on prices and the nature of the services provided.

Regulatory Framework Under President Obama

In 2010, the FCC established the Open Internet Order, which included new rules that were meant to provide broad internet access and create a “neutral network.” This order required ISPs to be completely transparent about any and all “blocking and unreasonable discrimination of content” that they were engaging in. An Internet Advisory Committee was established within the FCC that would monitor the ISPs and enforce the rules. Challenge to the Open Internet Order was brought claiming that ISPs were information services and therefore wrongfully heavily regulated. The DC Circuit Court upheld this challenge and ruled that information services cannot be regulated like this. Also, the anti-blocking and nondiscrimination rules were ruled too restrictive for information services. However, the transparency requirement was upheld. 

Afterwards, the FCC revised their policy and in 2015 issued the “Net Neutrality Rules for Open Internet" under FCC Chairman Tom Wheeler. This policy held ISPs to the same standard as telephone companies and therefore, established them as common carriers, which can be regulated to a greater extent. This order prohibited ISPs from any blocking throttling, or paid prioritization. It also established general conduct standards to protect consumers from discriminatory practices as well as continued to enforce transparency rules. The DC Circuit Court ruled this new policy lawful due to ISPs being categorized as common carriers. For a timeline of net neutrality under the Obama administration, visit here.

Regulatory Framework Under President Trump

Shortly after President Trump’s election, the new FCC leadership under Chairman Ajit Pai proceeded to dismantle the prior net neutrality rules. In 2017, a new FCC order titled "Restoring Internet Freedom" was issued. It reclassified ISPs as information services, therefore shielding them from extensive regulation. It also eliminated any rules prohibiting blocking, throttling, and paid prioritization, however transparency regarding these practices is still required. The FCC also gave the Federal Trade Commission the authority to take action against any terms of service violations by the ISPs, thus almost completely eliminating the FCC’s regulatory power. The Trump administration claims that any state interference in the ISPs’ work would go against the federal regulatory framework and be too controlling of the industry. The D.C. Circuit upheld the FCC's repeal of net neutrality, but remanded the case for consideration of several issues.

Since this policy was established, many net neutrality advocates, consumer groups, and other concerned individuals have tried to sue the FCC. Also, states such as California, Oregon, Vermont, and Washington have enacted their own net neutrality rules that promote more government regulation on the ISPs that are providing services in their states. However, the federal government is challenging California's net neutrality law.

Regulatory Framework Proposed by the Biden Campaign

Former Vice President Biden’s campaign crafted a task force document with Senator Bernie Sanders and other left-leaning individuals to create an internet plan that restores net neutrality. As reported by Gizmodo, Biden has committed to investing $20 billion in rural broadband internet access and he believes that more public investment in broadband infrastructure can benefit Americans from all backgrounds. If he is elected, Biden promises to re-establish the rules prohibiting blocking, throttling, and paid prioritization, most likely through the reclassification of ISPs as common carriers. Though as president Biden would not have direct say over net neutrality, he will be able to choose the new FCC chairman who aligns with his policy goals.

Regardless of your political alignment, access to the internet has become more important than ever. Whether the U.S. government should adopt net neutrality is a controversy that divides the two presidential candidates and two political parties. 

--written by Mariam Tabrez


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