President Donald Trump recently named Republican Ajit Varadaraj Pai the new Chairman of the Federal Communications Commission (FCC), and it has many people talking about net neutrality. Chairman Pai is anti- net neutrality, and the previous Chairman of the FCC, Democrat Tom Wheeler (served November 5, 2013- January 20, 2016) is pro- net neutrality. In this article, I’ll explain what net neutrality is, a summary of both positions on the issue, how Chairman Pai plans to affect net neutrality rules in the US, and how to effectively influence members of the FCC or your legislators on this issue.
Net neutrality is the idea that Internet Service Providers (ISPs) should treat all lawful data and internet traffic that travels over their networks equally, without discrimination in favor of particular apps, sites, or services. This means no paid prioritization, no throttling, and no blocking. AT&T, for example, can’t prevent you from going to YouTube, or slow YouTube’s speeds, or force YouTube to pay for preferential treatment. The 2015 Open Internet Order (OIO), created by and enforced by the FCC under Wheeler, is the current standing rule in the US that upholds the ideas of net neutrality. The two precursors to OIO were shot down- the first after a lawsuit from Comcast in 2010, and the second after a lawsuit from Verizon in 2014- because the Federal Appeals Court deemed that the internet had to be considered a utility for the FCC to enforce rules keeping ISPs from prioritizing some traffic over others. OIO does precisely that, identifying broadband internet as a utility under Title II of the Communications Act, as well as stopping ISPs from using the methods listed above when dealing with data and internet traffic.
In this next section, I will outline the positive position on the net neutrality issue: Net neutrality must be upheld by the government to protect the future of our open internet. If some sites, apps, or services get preferential treatment over others, it limits consumer choices, blocks certain messages or information from being available to everyone, and reduces competition in the internet marketplace. Laws on this issue should include rules against blocking, throttling, and paid prioritization of Internet traffic, should enforce transparency in ISPs about how their traffic is managed, and should include forbearance restrictions on what the FCC can do without holding another rulemaking. Governmental rules are a necessary check on the power of ISPs, especially in the US, considering the limited number of major ISPs: Comcast, AT&T, Verizon, Charter, T- Mobile, and Sprint, and the massive costs required for any new company to join their ranks. For this reason, people who are pro- net neutrality are against large mergers of ISPs. Wheeler felt that the internet is as much a public necessity as electricity or running water, and the companies providing it need to be regulated as such, which is why he pushed to classify broadband internet as a utility. People who are pro- net neutrality are generally supportive of the OIO, but they think that the FCC must be able to expand the OIO as more methods of preferential treatment are being thought of, whereas the FCC currently has the right to rule on new circumstances on a case- by- case basis unless they were specifically listed in the order.
There is one such preferential treatment method being used increasingly today, which was created by ISPs post-2015, called zero-rating. Zero-rating is when an ISP allows certain services to be streamed on its network at no cost to a user’s data cap. Some examples are T-Mobile’s Binge On or Music Freedom plans, which allow streaming of music or video respectively from certain internet services, such as Spotify and Pandora, or Netflix and Youtube, without counting toward the user’s data plan. Another example of zero- rating is when AT&T made it so that its own DirectTV Now streaming service was exempt from AT&T data caps, and had a Sponsored Data program, which charged third- party services a fee to be zero- rated by AT&T. Verizon also had a zero- rating system that was similar called go90. When zero- rating occurs competing services owned by companies without a network are at a disadvantage in the marketplace whether they participate in the zero- rating plans or not; If they do participate, they are funding their competitor, and if they don’t participate, then their ability to be viewed by the network’s customers is limited. This plan also guarantees the parent company of the network revenue, whether it’s through 3rd– party fees or subscription fees. Additionally, zero- rating, whether associated with fees or not, is viewed by smaller companies as making the strongest service companies stronger because only the largest service companies can afford to have the relationships with the networks, and therefore they are the only services offered zero-rating. Just before Wheeler stepped down, the FCC deemed both AT&T and Verizon’s arrangements to be in violation of the OIO saying “Sponsored data offerings by vertically-integrated mobile broadband providers may harm consumers and competition in downstream industry sectors by unreasonably discriminating in favor of select downstream providers, especially their own affiliates.” He could not, however, rule that all zero- rating is prohibited, because all preferential treatment methods not specifically listed in the OIO are supposed to be ruled on in a case- by- case basis. More lax enforcement of the OIO would allow for zero- rating to continue and perhaps for other preferential treatment methods created in the future to be overlooked.
Now I will outline the negative position on the net neutrality issue: The more competition you have, the less regulation you need because the market will bear it out. Now that broadband internet is a utility, the FCC can regulate how much an ISP can charge the consumer (though the agency has promised not to use that power) and that is too much governmental interaction in the market. Furthermore, a non- neutral network isn’t necessarily a bad thing. Consumers seem to like the zero- rating programs, for example, because, assuming all the services are equal, why not prefer the ones that they can use freely on the go? These sort of market decisions should be made by the consumer, not by the government. People who are against net neutrality are also generally against the OIO for these reasons. In the lead- up to the vote on broadband internet as a utility, Chairman Pai said that the OIO would curtail the ability of the ISPs to “offer innovative service plans.” Chairman Pai has characterized zero- rating as “offerings that are popular among consumers precisely because they allow more access to online music, videos, and other content free of charge.” The internet was categorized as a utility mainly because President Obama pushed for it, and the FCC has grown too partisan, which is leading them to make decisions based off political affiliation instead of good reason. University of Florida economist Dr. Mark Jamison argues that the OIO discourages network infrastructure investment and therefore the FCC should take a wait- and- see case- by- case approach instead of banning all non- neutral services ahead of time. He says, “There have been a lot of good economics papers written on net neutrality, and the basic conclusion is that sometimes the acts that would violate net neutrality are very good for customers, and sometimes the acts that would violate net neutrality are bad for customers. It depends upon the situation. That’s why I’m so concerned about simply outlawing the business model. Why not deal with any problems that are created when they’re created? Maybe they never will be. Maybe those situations will never arise. I think it’s better to deal with that when it’s a fact, rather than when it’s a possibility.” Jamison lists past attempts by Google and Facebook to expand internet access in developing countries by using networks which prioritize their own services as one example of anti- neutral policies being beneficial.
These attempts were met by a strong backlash from consumer advocates and in Facebook’s case, the Indian government, for giving them a leg up in the market, because they would be monopolies in the internet market in those regions, at least initially, and prioritizing their own services would quash competition in those service markets. Facebook and Google have said that they were only interested in prioritizing their own services because they would foot the bill for the infrastructure, and they wanted some kind of benefit to balance out that significant cost. When they were told that they could not prioritize their services, both companies abandoned the project, feeling that it was not worth the cost. So, there is still no internet in these areas which, per net neutrality sentiments, is desperately needed, because net neutrality laws prevented it from being created. In general, Jamison argues, any government trend of greater control over how an ISP can run its business causes ISPs not to pump as much money into network infrastructure because they won’t get any benefits from doing so. President Trump’s transition team, a decidedly anti- net neutrality group, was considering moving the FCC’s competition and consumer protection functions to the Federal Trade Commission, feeling that such rulings are outside of the FCC’s purview altogether. As Wheeler recently noted to Ars Technica, past court decisions have cast doubt on the FTC’s ability to regulate ISPs, and access to the information on the internet seems to be more important and necessary than access to any other normal good or service.
According to the FCC’s latest Internet Access Services report, only 24% of developed housing areas had at least 2 broadband providers to choose from that advertised sufficient high- speed wired internet (speeds of 25Mbps down and 3Mbps up) as of December 2015. Wheeler reclassified “broadband” to this higher speed in 2015 (from 4 Mbit/s down, 1 Mbit/s up in 2010) because of newer technologies like streaming 4K video which recommend a connection speed of at least 25Mbps. Akamai’s latest broadband measuring report says that 25Mbps adoption rates are still “fairly low” nationwide- no single state meets the threshold on average. The report says the average connection speed in the US is up to 16.3 Mbps, while the average peak connection speed is now closer to 70Mbps. The connection speeds in the US are steadily improving, but that average is being pulled up by a minority of especially active areas. The US’s average connection speeds do not make it onto Akamai’s list of the 10 fastest countries- though it’s worth remembering that ISPs in the US must cover a much larger and more diverse area of land than in other countries. The US is number 12 in connectivity speed in the world.
Infrastructure investment numbers since the Open Internet Order have been disputed and they appear to fluctuate on a company- by-company basis. Jamison points to studies by economist Hal Singer that say investment has fallen across the board in the 2 years since the OIO was expected. Data suggests that ISPs in the US, with the exception of Sprint, who disproportionately brought down the average of infrastructure spending in 2015, haven’t stopped investing in infrastructure since OIO. However, 2 years of data is not a statistically significant study as the data should be viewed in context with the overall growth of each company as well as LTE and 5G network rollouts that are still being implemented. Also, this data does not include the network infrastructure spending that might have happened from companies that could not enter the internet market at all because of net neutrality laws.
How might the new Chairman of the FCC affect net neutrality? Chairman Pai was previously the Senior Republican Commissioner at the FCC under the last (Wheeler’s) administration. Chairman Pai’s voting record and past statements strongly suggest he will move the FCC in a more laissez faire direction, so several of Wheeler’s hallmark rulings are now on the chopping block, including the OIO. Changes to the OIO would be the most impactful changes to the future internet that he is likely to rule on. He voted against the OIO in the first place, claiming it was trying to “solve a problem that didn’t exist,” and there was “no evidence of systematic failure in the Internet marketplace” at that time. In December, he said he was “more confident than ever” that OIO’s “days are numbered” and that it would “not have any impact on the Commission’s policy- making or enforcement activities” going forward. He also strongly disagrees with listing broadband as a utility and he voted against the increase of the “broadband” speed threshold in 2015, saying that the previous, slower 10 Mbps threshold was sufficient, is met by more of the US today, and that 4G LTE wireless service was bringing more people toward universal broadband anyway, so there was no need to legislate a faster standard. Because of this, he might remove rules that require ISPs to have speed minimums, and he has definite plans to roll back the OIO in some capacity. If he does attempt an official change to the order, he would have to make the case that something has happened to warrant reversing a ruling that was upheld in court last year. One way he could go about this is to lobby legislators such as John Thune, head of the Senate Commerce, Science, and Transportation Committee, and his house equivalent Greg Walden, to strip back the FFC’s expanded authority on this issue. This sort of legislation would likely face pushback from liberals and consumer advocacy groups even if it included the barring of the preferential treatment methods listed in the OIO, for conceding too much ground. Other ways that Chairman Pai could affect net neutrality would be his push to address the “digital divide,” or the discrepancy between areas with abundant broadband and those without it. On Tuesday, he announced the formation of a new committee within the FCC that will give advice on how to expand fast internet to more areas, and develop a general set of policies that communities can use to make deployment easier. To do this, he plans to create tax incentives, and reduce “unfair and unreasonable fees.” Chairman Pai will probably also roll back the Lifeline program in some capacity, which provides government subsidies to help low- income communities buy home or mobile broadband service. He stated that these kinds of market decisions must be made by consumers, not the government. Additionally, Chairman Pai is open to mega-mergers between ISPs, and currently AT&T is attempting to acquire Time Warner. There is also some speculation that Sprint and T-Mobile are looking to merge and the same with Verizon and Charter. He did vote against the Charter/ Time Warner Cable merger last year, but only because he thought that Wheeler imposed too many regulatory conditions, such as preventing the company from applying data caps, or charging subscribers more based on how much data they use. It could also be the case that the FCC will have no control over net neutrality in the upcoming years, and therefore Chairman Pai will have no impact on net neutrality at all, because President Trump’s transition team has suggested moving the FCC’s competition and consumer protection functions over to the Federal Trade Commission, claiming that the internet is a commodity, not a utility. I guess we all must simply wait and see.
What to Do
If you would like to speak to your legislators, or Chairman Ajit Pai, Commissioner Mignon Clyburn, or Commissioner Michael O’Rielly of the FCC, about this issue, here are some helpful tips:
- Join a tech organization or group, and make your comments on their behalf (after thoroughly discussing this view with the organization first and make sure that they support your thoughts on the issue). Legislators are far more likely to take your opinions seriously if they are aware that you are not the sole holder of those opinions in their district. Chairman Pai or another member of the FCC will be far more likely to listen to you if you are lobbying on behalf of an organization because it shows that you are committed to the subject and there are more than a few experts in the field who also hold this position.
- Look up their office phone number on the internet, make an appointment, and keep it.
- In person- The most effective way to influence anyone is by talking to them face- to- face. If you are a Washington DC local, ask for a meet- up with them, possibly over coffee. Data shows that legislators on average would rather get away from their office to talk about issues so that they can feel more relaxed and be more receptive to new information, and I assume that members of the FCC feel the same way. DO NOT FOOT THE BILL- that is considered a bribe. Dress appropriately (in a business dress or suit), and do not be late.
- Video chat- If you are not a Washington DC local, simply make an appointment to video chat with them. Much like you, they have smart phones and laptops which they generally don’t mind using for video chat so that they can get a better idea of who they are talking to. Again, look presentable, and speak clearly, informatively, and dispassionately.
- Phone call- If they are not a “tech person,” and you are not local, you can make an appointment to discuss this issue over the phone. They will keep their call appointments. Legislators are usually interested in what their constituents have to say on tech issues, and both groups want to be as informed as possible on the issue, as they will legislate the issue but are not themselves experts in the field. You will get taken more seriously in this format if you are a tech professional.
- Email- As a last resort, email them at the email address listed on their website.
- Stay on message. Do not jump around to any other issues as you want them to remember you as their “net neutrality person” and contact you when they have a tech or net neutrality question.
- Follow up. The follow- up is possibly more important than the initial meeting. Remind them of the issue, your opinion, what organization you are with, and any promises they might have made, via email. They are all busy people and they might not remember you or your cause if you do not remind them.
- Stay up on the facts, and answer the form of communication that you gave them. If they think that you are informed on the issue, and they are interested in what you have to say, they will likely respond to your follow- up email or call you with questions.