Happy birthday, net neutrality! A year ago today, after a long and contentious process, the FCC formally adopted the Open Internet Rule, reclassifying broadband internet as a Title II communications service and creating bright-line rules to protect consumers’ and businesses’ access to the internet.
But the end of the rulemaking process was only the beginning of another long series of fights. So a year in, what’s worked, what do we still not know, and where do we sit overall?
The actual rule created three bright-line obligations for both fixed (wired/wifi) and wireless (mobile) broadband:
- Broadband providers may not block access to legal content, applications, services, or non-harmful devices.
- They may not impair or degrade lawful internet traffic on the basis of content, application, services, or any classes thereof.
- They may not favor some internet traffic over other internet traffic in exchange for consideration of any kind — no paid prioritization or fast lanes.
The FCC exerted that authority by reclassifying internet services as Title II telecommunications services instead of information services, reversing a 20-year-old decision made when “internet” still meant, “I have AOL and my neighbor has CompuServe.”
Passing the rule was contentious, both inside the FCC and in the world of business. But it did pass, and officially became law on June 12, 2015.
However, there were (and are) still plenty of unresolved, open questions lingering after the rule was passed, including questions around zero-rating, data caps, peering agreements, and other tricky issues now in the broadband landscape.
ISPs swore up and down that the Title II ruling would damage their businesses and cause them to stop investing in their companies and networks, but so far that hasn’t borne out. Overall, their 2015 financials show continued growth and investment.
And when it comes to upgrading networks, building out business, and growing consumer services, those seem to be on track, too. Comcast — the nation’s biggest single provider — is continuing to work on upgrading networks to a newer, faster standard. AT&T is still expanding their GigaPower network. And Charter is still trying to match Comcast for size by buying Time Warner Cable and Bright House Networks.
Meanwhile, net neutrality opponents were right about one thing: there aren’t that many real-world examples, at this specific time, of providers flagrantly breaking the rule — and that’s a good thing! Consumers are generally able to access the services they want without undue interference from their ISPs… although the first complaint was filed the very week the rule went into effect.
It’s no secret that regulation is a contentious topic among both politicians and regulators, and the FCC has found itself mired in an even deeper political swamp than usual thanks to the net neutrality ruling.
In the first month after the FCC passed the rule, commission chairman Tom Wheeler was hauled into fiveseparate Congressional committee hearings, asked each time to justify not only net neutrality but, in some cases, the FCC’s entire mandate to regulate broadband at all.
Congress also tried floating their own version of net neutrality, trying to forestall the FCC’s process, but the bill didn’t get past the shouting stage before the commission passed their own rule.
Several of the same members of Congress, in both the House and Senate, tried using riders attached to spending bills and the appropriations process to prohibit the FCC from taking certain actions, or even to take funding away from the agency. Those motions, however, were unsuccessful.
A different set of Senators and Representatives, meanwhile, filed a brief in court on behalf of the FCC, to bolster their court case. And about that case…
The Legal Fight
Lawsuits, filed by the ISPs and their trade groups, started pouring in from he first moment that they were legally permitted, back in April, 2015.
The cases were heard at the U.S. Court of Appeals for the D.C. Circuit back in December, when a three-judge panel heard arguments from both the ISPs and the FCC.
The legal case hinges on some narrow points of law but the court will, from a high level, determine one, if the FCC had the right to reclassify broadband services and two, if the procedures under which they did so were correct. If the answer to both points is “yes,” the rule as we have it stands. If the answer to one or both is “no,” we’re back to the drawing table and the colossal fight begins again.
The court’s ruling still isn’t in, but is expected in March or April of this year.
Meanwhile, the most activity is happening in exactly those grey areas the FCC left unresolved with the big rule.
Interconnection (peering) agreements are still a major issue, as traffic from streaming video binges now accounts for 70% of all prime-time internet use. The places where networks meet each other and the last mile are only going to get more contentious as time goes on, and the FCC’s plan is still to handle those on a case-by-case basis.
But the next big fight undoubtedly has to do with data caps, and manipulating consumer behavior through exempting some content from them (zero-rating). T-Mobile, AT&T, and Verizon all have some kind of sponsored data plan in place allowing businesses to exempt their content from wireless customers’ data caps.
(Even without exemptions, data caps on their own, as used by Comcast and other ISPs, may draw FCC attention if they continue to spread.)
Zero-rating remains entirely contentious. Some experts have said that it violates net neutrality. The ISPs and wireless companies, of course, disagree. But even the FCC doesn’t seem sure where it fits.
On the one hand, Wheeler has explicitly called the practice “innovative” and “highly competitive.” And on the other hand, the FCC has called the companies that do it into their office to explain themselves.
Where the matter goes from here is anyone’s guess, but one thing is for certain: any change will come with a whole lot of yelling all around.