August 01, 2016 Road Warrior

Road Warrior: Revisiting Net Neutrality

Jeffrey Allen

Some time ago I wrote a column encouraging you to support the concept of net neutrality. Since that time a number of important things have occurred in this field, so I thought it made sense to revisit net neutrality with you and bring you up-to-date about it. The issue bears directly on all of our use of the Internet, so it has importance for those of us who consider ourselves road warriors as well as everyone else who uses the Internet in their personal or professional lives. Simply put, because almost everyone uses the Internet in some facets of their life, net neutrality has the significance of affecting almost all of us in one way or another.

A Net Neutrality Primer

To refresh your recollection, the issue of net neutrality relates to the ability of a provider to regulate the speed of the flow of information over the Internet. Net neutrality means that everyone gets the same treatment. The alternative would enable a provider to restrict the flow of information from some websites and not others. Simply put, this would let a provider encourage people to use its site for data and streaming as opposed to a competitor’s site by allowing you to get information more quickly from its site and more slowly (less satisfactorily) from its competitor’s site. Without protected net neutrality, an Internet provider could partner with media providers and give their data favored status, damaging their competitors by clamping down on the speed of transmission from their sites, thereby creating performance problems.

This is an issue that should concern us as we all grow increasingly dependent on the Internet for many things relating both to work and recreation. A partial list includes, without limitation, information gathering, communications, news, entertainment, shopping, and travel. How we access the Internet and the speed at which we can interact on it can have significant consequences to our personal and professional lives.

A report published online by Pew Research Center entitled “Americans’ Internet Access: 2000–2015” noted a steady growth of Internet use during the period 2000 to 2015. The article states that 84 percent of American families had Internet access by 2015 (tinyurl.com/j42ugcg).

Protecting Net Neutrality

The Federal Communications Commission (FCC) adopted rules to protect net neutrality last year in the form of the 2015 Open Internet Order (OIO). The OIO reclassified broadband Internet service as a form of telecommunications. By doing this the FCC made the providers of Internet services subject to regulation as a common carrier pursuant to the Communications Act. The FCC adopted rules designed to promote a neutral Internet (meaning all traffic gets treated the same way). The OIO provides, in part, that:

  1. broadband providers may not block access to legal content, applications, services, or non-harmful devices;
  2. broadband providers may not impair or degrade lawful Internet traffic on the basis of content, applications, services, or non-harmful devices; and
  3. broadband providers may not favor some lawful Internet traffic over other lawful traffic in exchange for consideration of any kind—in other words, no “fast lanes.” This rule also bans ISPs from prioritizing content and services of their affiliates.

You can find the report, its justification for the OIC, and the order itself online at tinyurl.com/q6c2ksx.

The FCC’s decision was challenged in court by Internet providers. The trial court’s decision was appealed to the U.S. Court of Appeals for the D.C. Circuit (the third case challenging FCC rulings favoring net neutrality to reach that court in the last several years). In this case, United States Telecom Association, et al. v. Federal Communications Commission and United States of America (2016), USCA case 15-1063, the Court of Appeals upheld the FCC’s rules (the OIO), effectively sustaining the FCC’s position that the Internet serves us as a utility and not a luxury. It exceeds the scope of this column for me to summarize the lengthy decision in detail or brief the case. Suffice it to say that broadband providers challenged the OIO in court, arguing that the FCC did not have the authority to reclassify broadband as telecommunications and that even if it had the authority, the decision to do so was arbitrary and capricious. The providers also challenged the rule as a violation of the First Amendment. The matter went through the trial court and ultimately ended up on the doorstep of the Court of Appeals for the D.C. Circuit, which denied the petitions for review, determining that OIO should stand.

While I am not going to brief the case here, it makes interesting and informative reading, so I recommend that you take some time at least to skim the decision to see what it is all about. It gives you a pretty decent background into the issue. The issue of net neutrality ultimately affects all of us, and this case now stands at the center of the issue’s universe.

Perhaps the most significant aspect of the decision is the fact that it painted with a broad brush in validating the OIO and recognizing that the FCC has significant authority over broadband communications.

It is likely that the plaintiffs will ask the U.S. Supreme Court to review the decision, but as of the time I write this column, nobody has petitioned the Supreme Court for a hearing.

The Future of Net Neutrality

It is hard to anticipate what the Supreme Court will do with this case, particularly because we do not know when it will come before the Court. Remember that the Court is currently short one member, and the Republicans in the Senate have taken a constitutionally indefensible position that the sitting president should not appoint the ninth member of the Court but should, instead, defer to the incoming president. As you know, President Barack Obama has nominated Chief Judge Merrick Garland to fill the vacancy. The Republicans have sworn to prevent a vote on Obama’s nomination. If this strategy succeeds, given that we don’t know how the upcoming presidential election will end, we don’t know who will make the appointment or whom they will nominate. Accordingly, this has all the earmarks of a pretty decent soap opera!

President Obama has come out in support of net neutrality. Secretary Hillary Clinton has indicated that she supports the concept as well in comments supportive of FCC Chairman Tom Wheeler for coming up with the OIO. As of the time I am writing this column (late June), Senator Bernie Sanders’ candidacy appears to continue only in his mind and the minds of his supporters, but he has been tracked as strongly favoring net neutrality. Donald Trump has opposed net neutrality, comparing the concept to the FCC’s Fairness Doctrine, FCC policy in effect from 1949 to 1987 requiring FCC licensees to (1) devote some of their programming to controversial issues of public importance and (2) allow the airing of opposing views on those issues. This meant that programs on politics had to include opposing opinions on the topic under discussion. Broadcasters had an active duty to determine the spectrum of views on a given issue and include those people best capable of representing those views in their programming. Trump’s position appears to be that net neutrality will result in censorship of conservative viewpoints. In all likelihood the next Supreme Court justice will have a political perspective similar to the appointing president; this could make a significant difference on the outcome of the case, should the Supreme Court accept it.

For now, at least, those of us who believe in and support net neutrality can celebrate an important victory. This fight has gone on in Congress and in the courts for about a decade. It is worth noting that during the process of the creation of the OIO, almost 4 million people sent communications to the FCC supporting an open Internet. More than 100,000 signed a petition to President Obama urging him to support an open Internet, which, ultimately, he did. The weight of public opinion and the president’s support helped encourage the FCC to adopt the OIO.

Jeffrey Allen

Jeffrey Allen (jallenlawtekblog.com) is the principal in the law firm of Graves & Allen in Oakland, California. A frequent speaker on technology topics, he is Editor-in-Chief of GPSolo magazine and GPSolo eReport and a member of the Board of Editors of Experience magazine.