It’s Official: The End of Net Neutrality

by Cierra White

On February 22, 2018, the final rule rolling back net neutrality was published by the Federal Communications Commission in the Federal Register. This rule makes official the reversal of an Obama-era rule requiring that broadband access be classified as an information service rather than a telecommunications service under the Telecommunications Act of 1996. What this essentially means is that internet service providers could slow down, speed up, or block delivery of certain content to consumers.

Those in favor of the roll back of net neutrality believe that the new rules will improve the overall internet user experience by allowing internet service providers to prioritize quality sites and activities that require faster access, thus encouraging innovation. While some say that with the rollback should come with guidelines for how content can be prioritized or restricted, others believe that competition between service providers will be sufficient to regulate how those providers manage content.

Those in favor of net neutrality argue that this rollback will have dire consequences for consumers, businesses, and the internet as we know it. The American Civil Liberties Union fears that internet service providers will prioritize bigger companies who can afford to pay more for faster service while restricting smaller sites or possibly blocking disfavored content. If companies pay more to acquire faster delivery of their content, this added cost would likely be passed on to consumers in the form of increased subscription prices. In addition, in most places in the United States, consumers have access to only one or two broadband internet service providers in their area. Service providers’ management of content cannot be regulated by competition if there is no competition.

The day the final rule rolling back net neutrality was published, a coalition of 23 Attorneys General filed a petition for review asking the court to block the rule from going into effect. Led by New York Attorney General Eric Schneiderman, the Attorneys General argue that the rule is illegal. The petition claims that the rule is arbitrary, capricious, and unconstitutional. Attorney General Schneiderman argues that the rule fails to justify the FCC’s long-standing policy and practice of defending net neutrality, and that the rule wrongly reclassifies broadband internet as an information service rather than a telecommunications service.

Back in 2015, the FCC effectuated net neutrality when it reclassified broadband internet as a telecommunications service rather than an information service. The classification meant that internet service providers could not favor certain content over other content. In other words, the providers must remain neutral. But this too was a reclassification, just as the new rule is a reclassification.

In 2005, the Supreme Court in the Brand X decision confirmed the FCC’s authority to interpret the classifications from the Telecommunications Act that are at issue now. That case stemmed from an FCC rule classifying broadband internet as an internet service provider, just as it has done again.

Civil liberties and consumer groups, some internet companies, and nearly half of the country’s attorneys general have come out in opposition to the FCC’s new rule. They argue that the people have a right to a free and open and neutral internet. A free and open internet is ideal for many. And it is quite possible that the rollback of net neutrality will be detrimental to consumers and the internet once the new rule goes into effect. It is also true that only a handful internet service providers control broadband access in America and most areas have access to only one or two provider options, so depending on competition to keep the system in check may not be prudent.

However, as a legal matter, the opponents of the FCC’s new rule may not succeed on their petitions to block the rule. As the Supreme Court has held, the FCC has the authority to determine this classification. And agencies are permitted to change their minds. Perhaps the continuing evolution of the internet since Brand X, and especially since the passage of the Telecommunications Act, will lead Congress to revisit this type of classification and settle this issue.

*Disclaimer: The Colorado Technology Law Journal Blog contains the personal opinions of its authors and hosts, and do not necessarily reflect the official position of CTLJ.