It’s been a year since the Federal Communications Commission adopted the Open Internet Order, theoretically ushering in the age of net neutrality. Under the order, Internet service providers are banned from discriminating against certain types of traffic or charging deep-pocketed Internet companies to have their content funneled through so-called “fast lanes.” Net neutrality advocates hailed the FCC’s decision as a victory for equal access and free speech, an Internet where money can’t buy privileged placement on the network.
But the battle is far from over. In fact, the FCC’s decision has catalyzed the forces that oppose government-enforced net neutrality. Regulators may be pushing for a more open Internet, but its prospects are in greater danger than ever.
Those threats are coming from multiple directions. Last month, presidential candidates Ted Cruz and Marco Rubio, along with six other senators, proposed a bill that would overturn the FCC decision. The legislation, dubbed “The Restoring Internet Freedom Act,” would not only nullify the FCC’s net neutrality rules but prohibit the agency from passing similar rules in the future.
The bill is just the latest way that congressional Republicans have sought to undermine the FCC’s decision, and it’s far from the only threat to the regulations. From telecom industry lawsuits to free data for certain companies’ content, net neutrality as both a legal mandate and a political ideal is under siege.
The Legal Threat
The most immediate threat to the Open Internet Order is a lawsuit filed on behalf of the telecommunications industry by the US Telecom Association challenging the FCC’s authority to enforce net neutrality regulations. The case is now being deliberated by the US Court of Appeals’ District of Columbia Circuit.
A previous version of the Open Internet Order was struck down in 2014 because broadband providers weren’t classified as so-called common carriers—the equivalent of telephone companies, but the FCC reclassified internet providers as common carriers last year before passing the current net neutrality order. The telco industry argues this reclassifying is a overreach on the part of the FCC. “The order represents an unprecedented transfer of regulatory power to the FCC without a clear warrant from Congress,” the association said in a blog post last year. The association charged that in seeking to extend its regulatory reach to every Internet-connected device, “the FCC has asserted authority to regulate a massive portion of the entire US economy,” an argument echoed by net neutrality’s congressional opponents.
Both sides are now trying to guess at the intentions of the three appeals court judges hearing the case. Net neutrality supporters are optimistic that Judge Sri Srinivasan will side with the FCC. But Srinivasan, who worked for the Office of the Solicitor General during President George W. Bush’s administration and was nominated to the federal court by President Barack Obama in 2012, isn’t on record expressing any opinions one way or the other on technology and telecommunications law. Srinivasan is seen by many as the president’s most likely nominee for late Judge Antonin Scalia’s open Supreme Court seat, which could inject a heavy dose of politics into any net neutrality decision. Judge Stephen F. Williams, meanwhile, is generally seen as skeptical of regulation and asked the FCC tough questions during the hearing on the suit.
The decision could come down to Judge David S. Tatel, the judge who ruled against the FCC’s net neutrality rules in 2014. That could be seen on one hand as a reluctance on his part to approve the FCC’s actions. On the other, the FCC has now reclassified broadband providers, which alleviates his original concern.
If the court rules against the FCC, the Open Internet Act is toast. But if it rules in the FCC’s favor, the telcos can still appeal to the Supreme Court.
Network Loopholes
Even if the regulations remain entirely intact, Internet providers are already finding loopholes in the Open Internet Order that could undermine the core ideas of net neutrality. Many Internet providers have a set limit as to how much data you can use in a month. After you reach that limit, your connection might be throttled to a lower speed, or you might have to pay overage charges. But now several providers are exempting certain apps or websites from those data limits, a practice called “zero rating.”
Zero rating effectively makes it more expensive for subscribers to watch certain streaming video services or use certain photo sharing apps than others. Instead of a fast lane, it’s effectively a toll road for the Internet. That’s a huge problem for net neutrality, because it allows Internet providers to broker which sites and apps get this preferential treatment. But it’s not explicitly banned by the Open Internet Order.
Verizon and AT&T have both launched sponsored data services that allow companies to subsidize their users’ data usage. Verizon also allows its customers to view its own streaming video service, Go90, without having it count against their data caps. Comcast, likewise, offers a video service called Stream TV that doesn’t count towards the new data limits the company has rolled out in select areas.
But the most famous zero-rating service—or infamous, depending who you ask—is T-Mobile’s Binge On offering, which downgrades speeds for all video connections but allows customers to stream video from select providers without having that video count against their data limits. Binge On differs from Comcast and Verizon in that it doesn’t have its own streaming video service that it exempts. Instead, it exempts specific third-party providers, like Netflix and Hulu.
Unlike AT&T and Verizon, T-Mobile doesn’t charge companies to allow users access to zero-rated data. But that hasn’t exempted it from controversy. Stanford University law professor Barbara van Schewick argues in a paper published in January that this practice still violates the idea of net neutrality by prioritizing entertainment over education (since videos hosted on, say, Netflix are exempted, but those hosted on university websites are not), and by creating hoops for smaller independent providers to jump through in order to be exempted. Some providers, especially those outside the US, might not even know they need to apply to T-Mobile to be included in Binge On. Van Schewick concludes that although zero rating itself isn’t banned by the Open Internet Order, T-Mobile violates the FCC’s general conduct rules and is therefore illegal.
The FCC doesn’t necessarily see it that way. Although the Open Internet Act reserved the right to ban zero rating on a case-by-case basis, as opposed to a blanket ban on the practice, the agency has yet to take any action.
Telecommunications industry analyst Jan Dawson thinks fears over threats to net neutrality are overblown. “I’d argue that there were no large-scale threats to net neutrality when the order was passed, and there still aren’t now,” he says.
He agrees that Verizon’s zero-rated Go90 likely violates the spirit of net neutrality but argues that it’s such a marginal service that it’s unlikely to actually affect the online video market. Binge On, meanwhile, is more popular, but he says it’s less problematic since it’s open to any video provider and T-Mobile doesn’t charge to take part. In other words, we might not need strong regulatory protections to keep the Internet open.
But such faith has sometimes proven unfounded. In 2008, for example, Comcast was caught throttling Internet connections that used peer-to-peer file sharing networks, a practice the company initially denied but eventually admitted and later halted as the result of an earlier FCC net neutrality order.
Politicizing the Network
Ted Cruz famously called net neutrality “Obamacare for the Internet” in 2014. Donald Trump has claimed that net neutrality will somehow “target conservative media” (even though the Open Internet Act gives the FCC no power to interfere with conservative websites, or websites of any other political bent).
And this political campaign against net neutrality is working. In November 2014, 85 percent of self-identified Republicans opposed Internet fast lanes, according to a survey conducted by the University of Delaware. By November 2015, that number had dropped to 63 percent, and a solid majority of Republicans opposed using government regulations to prevent fast lanes.
Still, there’s reason to think that the public will still favor net neutrality regulations in the end. Harold Feld of the pro-net neutrality organization Public Knowledge points out that people still don’t like the broadband industry. “People are feeling screwed by their cable companies and their broadband companies and they’re not happy,” he says.
At the same time, Feld points out that while Comcast is very unpopular as a brand, T-Mobile’s zero rated offerings have proved good for the company’s name. Telling consumers that Comcast can’t charge them extra because they watched too much high-def Netflix probably won’t be controversial. But telling customers that they can’t have free Netflix on T-Mobile could backfire, fueling the Republican case against net neutrality.
That might be part of why the FCC is proceeding with caution. It’s an election year, and anything the agency does to stir up controversy could affect the outcome. If the Republicans take back the White House in November and appoint a new FCC chairman next year, all the existing regulations and legislation will likely be moot. That will be true every election year, at least as long as net neutrality remains a highly polarizing issue. The price of net neutrality will be eternal vigilance.