It’s been about 6-months since I last wrote about net neutrality. Where we last stood in early March was that the FCC had officially announced the revocation of net neutrality – the guarantee that internet service providers (ISPs) would be regulated like a utility meaning fair and equal access for the customer regardless of their personal or business status and regardless of the content. I also reported there were a number of things happening that could either 1) change the date that net neutrality had officially ended or 2) help keep net neutrality alive. As it happens, both occurred – and given the buzzing of “net neutrality” in recent news cycles, I wanted to revisit with updates and thoughts.
Net Neutrality’s official end date
Originally net neutrality was supposed to end on April 23 – this was the date as originally noted in the FCC’s official ruling – Restoring Internet Freedom which was released on Feb 22, 2018. On this date, ISPs could officially start testing the waters with changing the way they delivered content and service to subscribers.
While April 23 was a line in the sand – and some deregulation did start on that date – it wasn’t a flood-gate open situation, but rather the start of the water release. Part of the order released on Feb 22 required the Office of Management and Budget to approve repeal details in order to take effect. In early May, that approval came down, and after the FCC’s filed the correct paperwork, the full repeal date was marked as June 11.
So to be clear, as of June 11, net neutrality was officially dead. If you were waiting for a major change to happen or something to “burn to the ground” on that date, you were wrong...but there’s a logical reason for that. Part of that reason is that most major internet providers “have promised” not to block, throttle or discriminate against content. To me, a promise is nice, but let’s keep it real – this “promise” seems a little misleading especially considering many of these companies were the same ones kicking and screaming when net neutrality first came into existence. It’s also harder to believe service won’t change when you realize the ISPs’ definition of “net neutrality” is different than that of the original 2015 mandate that prevented the use of loopholes ISPs had discovered in providing service and content to customers.
Research done by Northeastern University and the University of Massachusetts-Amherst found that ISPs were slowing down traffic before net neutrality was officially revoked. From January – May 2018, video services such as Netflix and YouTube were seeing slower delivery of content. Just because net neutrality is dead doesn’t mean the conversation has stopped. In fact, there are lots of discussion on net neutrality that are still very active. This is because people are noticing the change and they have concerns – as anyone would.
In my previous report, I discussed that there were actually 3 ways in which the FCC’s Net Neutrality ruling could be overturned; a Congressional Review Act, an Administrative Procedural Act review or state law preemption could stop the repeal in its tracks at various levels. Many of these items are still in action, pending or being reviewed so I believe ISPs have been waiting on their heels to see what happens before blowing down the dam completely.
The Fight Continues
First up – A Congressional Review Act. On Wednesday, May 16, the Senate called a vote on the issue of saving Net Neutrality. With a vote of 52 in favor and 47 opposed, the Senate voted to keep net neutrality in place. While that vote helped pave the road to save net neutrality from a national perspective, the issue is that the Senate is only half the equation – the House is the other half. Given the political makeup of the House, it’s been harder to make a vote happen. House Democrats have urged Speaker Ryan to schedule a vote on the issue, but given that it’s an election year, Ryan’s impending retirement and the current Republican majority in the House, it seems there’s little motivation to take on the issue. Because of that, I see it more as “treading water” vs “dead in the water.” The reason I say that – it’s an election year. This could change the make-up of the House not just from a Republican vs Democratic perspective but also from a perspective of issues that incoming Representatives feel are important to their constituents (and if they’ll follow through on those concerns, issues, campaign promises on Capitol Hill).
Let’s say the Congressional Review Act (CRA) passes through the House…it passed through Congress to repeal the repeal. So what’s the next step? Back to the President’s desk to sign. Given Trump’s appointment of the head of the FCC – you’d think the answer would be clear, but it’s really not. The President has “changed his mind” in the past (i.e. backing Chinese phone maker ZTE during its battle with the Commerce Department over the company receiving hardware or services from US business for seven years – his concern was causing a large job loss in China) and recently has been speaking of net neutrality concerns for technology and social platforms. That’s a discussion we’ll have a little later. Given the current political climate, all bets are off as to whether it’s signed or not.
Next up on the docket – the Administrative Procedural Act (APA). The APA centers around if states/organizations brought a case against the FCC effectively suing them because they basically ignored everything – commentary, research, public discussion, industry experts and elected officials’ concerns – and did what they wanted. 23 state attorneys went this route the day after the FCC official ruling was published on Feb 22. Basically, they were saying this is a violation of federal law which would mean a federal trial and a venue lottery as the states participating were east coast to west coast, northern border to southern border. We also know joining this case as a sort of “expert witness” is The Internet Association – a trade group representing around 40 of the country’s biggest tech companies including folks like Google, Amazon and Facebook. The Association plans to intervene in the case against the FCC not as a formal party of the suit, but in the hopes of having the opportunity to demonstrate how the order might injure not just consumers, but also member companies and industry.
What makes the APA path interesting is that the states who are part of this action are being threatened with a countersuit by special interest group and lobbyist US Telecom – a group that represents some of the US’ biggest telecom companies (remember that promise I mentioned before). In an open letter, the US Telecom CEO wrote they would “aggressively challenge state or municipal attempts to fracture the federal regulatory structure that made all this progress possible.” This is a comment direct to the 23 states part of the case as well as the 68 mayors and county leaders who have openly written the FCC arguing that the repeal will stifle economic growth. Currently, the APA case is still pending – no trial date has been set and no venue has been selected.
This case was filed on February 23. It’s now over six months later and it hasn’t gotten far yet. Some states that are part of the suit have decided they need to take more immediate action in order to protect their citizens and constituents.
This is the 3rd part – state law preemptions. Since the FCC’s order was issued on Jan 4, over half of the states have introduced – and some passed – legislation protecting consumers restoring net neutrality on a state level. 30 states have introduced legislation requiring ISPs to ensure various net neutrality principals. 13 states and the District of Columbia legislators have introduced 23 resolutions primarily expressing opposition to the FCC repeal urging Congress to enact legislation reinstating and requiring the preservation of net neutrality. Six state governors have signed executive orders for net neutrality. Three states have enacted net neutrality legislation. The regulation details differ from state to state, but here’s the running list as of August 31.
- CA – ENACTED LEGISLATION (passed Aug 31, to be signed end of Sept) – net neutrality and fair distribution for all (no blocking and no “fast lanes”)
- IL – pending legislation – net neutrality for state agencies as well as consumers
- MA – pending legislation – net neutrality for all
- NJ – pending legislation – net neutrality for all or the ISP is not allowed to install infrastructure (New Jersey Net Neutrality Act)
- NJ legislation calls out ISPs as well as – specifically – cable television companies
- NY – pending legislation – net neutrality for all state, government and political agencies
- NC – pending legislation – net neutrality for the state (appropriates funds for statewide broadband access)
- PA – pending legislation – net neutrality for all
- OR – ENACTED LEGISLATION – Public bodies cannot contract with broadband internet access service provides that engage in paid prioritization, content blocking or other discrimination
- RI – pending legislation – net neutrality for all (Net Neutrality Protection Act of 2018)
- SC – pending legislation – net neutrality for all (South Carolina Net Neutrality Preservation Act)
- VT – ENACTED LEGISLATION – VT Broadband Internet Privacy Act – provides the protection of consumers and promotion an open internet in Vermont
- WA – ENACTED LEGISLATION – Open internet in Washington state
- WI – pending legislation – net neutrality for all
All in all – a lot is happening; legislation continues, as does the APA case. What has made the last few weeks so interesting is that “net neutrality” has come back up in the news—but it seems in a different context.
It now seems that a conversation has developed around “net neutrality” as it relates to technology companies providing or suggesting content. This goes to attack the specific algorithms that tech companies such as Google, Facebook and Twitter have developed that populates content in your search or social feed for you to select to engage with. I’ve seen enough coverage over the last couple weeks to believe this is something that isn’t going to stick for long or go far at all. While AI is smart, I fundamentally do not believe it’s that smart to say “this isn’t going to be a popular opinion, let’s bury it in the results to page 25.”
There have been talks of the Attorney General convening a meeting to look into the need to “open the books” on these algorithms to understand how they work and how they prioritize or deprioritize content. To me, this sounds like it’s someone trying to look under the hood and understand the “secret sauce” which goes to proprietary information and intellectual property. Additionally, given the scale of these companies, I fully believe if this does start to happen, a case such as this could get held up in the courts for a very long time.
As you can guess, the world of net neutrality – however you define it – is never dull and is an evolving conversation still.
Net neutrality to me – and most in the industry - means the fair and equal access of content on the internet from ISPs. Some will have thoughts about whether this should be a right guaranteed by the federal government or not, but I believe the events we’re seeing are setting the stage. Personally, I believe that this should be a federal law. Working in an industry in which heavy internet usage is not just a means of gathering information and research, but also as a central function of doing business, the wake from the FCC ruling has been unnerving and unrelenting. I am very happy to see that some states have recognized that in the absence of the federal guarantee, they will work to have a state law in place, but I recognize this is not consistent. I see it as a situation where consumer experiences across the board could – and most likely – will be impacted if something isn’t in place. As I reside in Virginia, I’m sad to say my state is not on the list above, but am hopeful there will be a shift in legislation to ensure fair and equal access to all in the near future.