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While net neutrality is heating up, what’s really going down?


Net neutrality has been a buzz phrase for a while, but the conversation is heating up in a whole new way in the last few weeks. There’s been a lot happening – and a lot of questions flying around – so this article is an attempt to lay down what’s going on and streamline a lot of information into one place while helping explain why this is important.

What is net neutrality really about?

Those two words together can sound somewhat scary – to users, to advertisers, to publishers – but it’s really not a scary thing. Net neutrality is the principle that Internet service providers (ISPs) should enable access to all content and applications regardless of the source, and without favoring or blocking particular products or websites. Basically, it’s the establishment that the internet should be regulated and provided like a utility – equal for all users and to all content.

Net neutrality first came to light as an issue in the early 2000s when it was found that Comcast was slowing down uploads for peer-to-peer file sharing applications like Napster. More recently AT&T limited access to FaceTime to users who paid for their data sharing plans. Just last year Verizon users noticed a slow down in Netfix and Youtube, which Verizon attributed to “networking testing” that was still within the guidelines of net neutrality rules.

Although delivery issues were identified in the early 2000s, net neutrality rules that barred internet service providers from blocking or throttling traffic or offering paid fast lanes, also known as paid prioritization were not established into policy until February 2015.

Why is the conversation heating up?

On Thursday, February 22, the FCC released their official ruling – “Restoring Internet Freedom” - which is the official write up of the December 17, 2017 announcement by the FCC to dismantle rules regulating the internet service providers, therefore granting these broadband companies more power to potentially block websites or charge for higher quality service/content.

This document laid out all the parameters for removing net neutrality and the deadline/establishment date of April 23 for all the rollbacks to start happening. This effectively started the countdown clock.

Since the announcement was made in late 2017, many actions had been discussed by various parties – from legislative entities to content publishers to local municipalities - but most waited for this official document release to begin their counteraction efforts as to be able to identify specific verbiage, statues, etc stating their case for challenging the ruling.

What’s really happening?

The top line is that there are a bunch of folks that are fighting to re-instate net neutrality as a “utility.” There are few different ways that the Feb 22 ruling is being challenged.

The first – challenging using the Congressional Review Act. This is an effort by federal law makers to call a vote that would really block the rule from taking effect. If this happened, it would be done at a federal level making it the law of the land for all US citizens and companies to comply with. This was also the earliest discussed challenge tactic as in early January Senators and Representatives had already started banning together in order to gain the numbers to call a vote. It is widely believed though that this would be the best “outcome” as it would be national, sweeping regulation affecting all corners of the US and causing uniform adoption/adhesion. However, the concern with going this route is that it is something that can easily be blocked by the President. Understanding that the President most likely put people into specific offices because they share similar beliefs to his, this implies that the President is in favor of rolling back net neutrality.

The second – challenging using the Administrative Procedural Act. This act has generated some of the strongest media coverage as 22 states and the District of Columbia attorney generals as well as multiple content publishers including Mozilla and Vimeo have brought cases effectively suing the FCC specifically siting this act. Their argument is that when the FCC made this ruling, they blatantly disregarded procedure which forbids “arbitrary and capricious” rulemaking. Basically, the FCC ignored everything and did what they wanted…ignoring commentary, not having or considering public discussions, ignoring experts in the field as well as elected officials’ concerns.

The third and last – challenging with state law preemption. This one is a little staggering when you look at the details (and helps provide some context to the second giving it some more weight). After the ruling was announced and before the official write up was released, 5 states had already decided to enforce net neutrality with executive orders issued by their state governors. Those states include Vermont, Hawaii, Montana, New Jersey and New York. The snag there – those orders apply only to ISPs that provide service to state government agencies and relies on the states’ power as buyers of internet service rather than on a law imposed to all ISPs. The story doesn’t end there though…there are 22 more states that have pending legislation. If you’re counting with me, that’s 27 states – more than half the country – taking a stand to keep net neutrality.

One of those 27 states is Washington state. Washington has acted quickly and as of Feb 28, 2018, has voted on and passed state legislation that applies to all wired and wireless internet providers in the state and prohibits blocking, throttling and paid prioritization. Net neutrality is the law of the land in Washington. Different from the previously mentioned 5 states, they are the first state whose legislation imposes net neutrality rules on all ISPs.

There is one last thing that could stop the looming April countdown clock from reaching zero and that’s the repeal’s review by the US Office of Management and Budget. The timing of the final review is still not known but it could stop, delay or not affect the clock just depending on what their docket looks like and how long it takes them to review and analyze the regulation.

So where do we go from here?

There’s a lot of activity going around and it doesn’t show signs of letting up any time soon given the polarizing nature of this issue. One thing to consider – there is a 10-day window for entities to file lawsuits once a rule is published in the Federal Register. That 10-day period for “Restoring Internet Freedom” has ended, but that doesn’t stop executive level decisions. This means that lawmakers can continue to work to bring legislation to the table that would help to keep net neutrality in place.

In an additional interesting turn of events, the 9th Circuit Court of Appeals ruled that the Federal Trade Commission (FTC) actually has jurisdictions over internet providers. The case that caused that ruling was a situation in which AT&T Mobility was brought to suit by the FTC over data throttling practices – in the original case, the court ruled in favor of the FTC, but AT&T wanted to appeal saying they were exempt from the oversite. This has some weight in the overall discussion because the FCC repeal basically left it to the FTC to take up oversight on consumer complaints over internet service but that was in question – if they had jurisdiction – because of this case. It is unknown if the FCC realized the implication of what they were setting up with their December repeal taking into account the very entity they were going to establish as the regulator was being challenged to their authority.

So what’s your opinion?

Professionally, working in the advertising space and constantly trying to consider implications to my client, my business partners and my industry in the future – for once – I’m happy to say I’m concerned, but not freaking out. Net neutrality really has limited impact on the advertising space. My clients should rest easy knowing that their ads will run and they will reach their intended target. My business partners – the content providers where those ads appear – they have a little more to be concerned about as this regulation could have implications opening their sites up to vulnerability that is completely out of their control and that makes me anxious for them. It’s one thing if you can face the boogey man and say “go away,” but it’s quite another when you feel like you’re being stalked and can’t shake the feeling something’s watching you.

Personally, the thought of losing net neutrality terrifies me. As a consumer of the internet for all types of things – shopping, sports, news, Netflix – the thought that my internet provider could impact my ability to consume the things I want seems wrong. Call it 1st amendment right, call it consumerism, call it selfishness – I just want to be able to absorb the content I want without someone forcing me to pay more for it or for the experience to be so dreadful that it’s not enjoyable (plus the millennial in me is thinking of cutting the chord).

As the internet has woven itself into the fabric of our lives – que the Cotton commercial music – the thought of ripping it out now is scary. It doesn’t seem fair. It doesn’t seem right. It doesn’t seem like it should be possible, but the reality is that since the internet has existed, companies have tried to figure out how to make more money selling it. Net neutrality is really regulation that I feel has been put in place to stop ISPs from taking advantage of the user, taking advantage of a situation and manipulating the content you can absorb.

The good thing from all of this – this is not a done deal. There are still things happening on multiple fronts that have an impact in the discussion, consideration and final outcome that will determine if net neutrality is officially repealed or left untouched maintaining the standards that were granted to us and secured for us with the 2015 regulation put in place.

Now, it’s just a waiting game to see how the story develops and eventually ends.

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