What Is Net Neutrality?

Updated

Net neutrality has gone from an esoteric concept to a headline-topper in the United States. The rise of data-intensive streaming media services such as Netflix and Amazon Prime Video and the concentration of power in large internet service providers (ISPs) such as Comcast and Verizon have raised questions about how internet access will be parceled out and paid for among content providers and consumers. An upcoming vote by the FCC to remove current net neutrality protections has thrust the subject back into the national spotlight.
Net-neutrality concerns span issues ranging from "When will my Netflix stop buffering?" to "Will the internet remain an egalitarian, democratic environment?" Let's see what the ISPs seek to do, and how the changes could affect you.

What is net neutrality?

At its core, net neutrality is about treating all content on the internet equally. This means that big content providers such as Netflix and Amazon won't be given preferential treatment by ISPs in relation to any other company, organization or individual , no matter how small.

But strictly enforcing net neutrality might also lead to inconveniences — such as slower, stuttery video-conferencing and worse cellphone voice services. Telecommunication companies worry that the Federal Communications Commission (FCC) will get all up in their business, even on basic engineering decisions. Political conservatives (including FCC Chairman Ajit Pai) have the same worries.

MORE: Could Net Neutrality Ruin the Internet?

Why is net neutrality in the news?

The FCC, under chairman Ajit Pai, has voted to remove net neutrality protections and stop regulating the internet as a utility. This is likely to be reviewed by Congress and taken to court. This provides more ISPs the opportunity to throttle users, censor content or enable fast lanes, though we've yet to see if this will come to be.

Once President Donald Trump named Pai chairman of the FCC in January 2017, the future of the open internet was in doubt. Pai has voted against net neutrality several times in his career, and many saw his appointment as the administration taking the same stance. But the debate goes back further than that.
 
The first event was a U.S. Court of Appeals decision in January 2014 involving a lawsuit brought by Verizon against the FCC.

The court ruled  that the FCC had used the wrong piece of legislation to enforce its net neutrality policy: Sec. 706 of the Telecommunications Act of 1996, which gives the FCC the mandate to promote broadband. Instead, the court said, the FCC would need to use Title II of the Communications Act of 1934 (see more on that below), which would allow the FCC to regulate ISPs  as public utilities, similar to the way telephone companies are regulated. This is what former FCC Chairman Tom Wheeler ultimately decided to do in 2015

But in May 2017, the FCC and newly appointed Trump-appointed Chairman Pai released a proposal to reverse Wheeler’s decision. You can read the proposed rules, entitled “Restoring Internet Freedom,” here. The document recommends rolling back Title II regulations on the internet, removing any legal authority the government might have to enforce net neutrality and questioning what should be done instead.

“We propose not to adopt any alternatives to the Internet conduct rule, and we seek comment on this proposal,” it reads.
 
On July 12, 2017, five days prior to the close of the public-comment period on Pai's proposal, dozens of potentially affected companies -- including Reddit, Amazon, Kickstarter, OkCupid, Dropbox and Imgur -- as well as the Electronic Frontier Foundation and other activist groups, held a “Day of Action,” to protest the potential abandonment of net neutrality with blog posts and pop-ups showing what could happen to the internet if net neutrality rules weren’t implemented.

But in November, the FCC announced that it would vote to end net neutrality rules altogether.

“Under my proposal, the federal government will stop micromanaging the internet,” Pai said in a statement. “Instead, the FCC would simply require internet service providers to be transparent about their practices so that consumers can buy the service plan that’s best for them and entrepreneurs and other small businesses can have the technical information they need to innovate.”

What is Title II of the Communications Act of 1934?

The Communications Act of 1934 is landmark legislation that, among other things, established the FCC and its authority to regulate telecom companies.

Title II of the act defines a type of company called a common carrier as, among other things, "any person engaged as a common carrier for hire, in interstate or foreign communication by wire or radio." (Under U.S. law, a company is generally treated as a person.)

Title II provides sweeping regulatory control over common carriers in Sec 202 (a). It's wordy, but worth a read.

"It shall be unlawful for any common carrier to make any unjust or unreasonable discrimination in charges, practices, classifications, regulations, facilities or services for or in connection with like communication service, directly or indirectly, by any means or device, or to make or give any undue or unreasonable preference or advantage to any particular person, class of persons or locality, or to subject any particular person, class of persons or locality to any undue or unreasonable prejudice or disadvantage."

The gist: Anyone providing a communication service can't discriminate against, or show favor toward, any of its customers. The FCC chose to classify voice telephone service as a common carrier, which has allowed it to tightly regulate providers. But in 1980, the FCC chose to classify the transmission of data as "enhanced services" or "information services," not subject to Title II.

These distinctions were made long before anything resembling today's internet. Cable TV companies, which don't have the same heritage as telephone providers, were never considered for any common-carrier designation. Many of the first ISPs were, and still are, cable companies, whose primary business is to charge both ends of the connection -- cable channels such as ESPN, and cable customers like you and me -- for access to the lines in between.
 
Later, the FCC ruled that wireless data providers, are not common carriers, either. The issue of whether data and the internet are public utilities is central to the entire debate.

What are internet fast lanes?

Wheeler started out far from this position on Title II. He still insisted that the twice-defeated Section 706 rationale could be the basis of a new policy. A draft net-neutrality proposal, passed by the FCC on May 15, 2014 (three commissioners voted for the proposal, and two against), would have prohibited broadband providers from deliberately slowing (or "throttling") internet traffic or blocking legal content. But it was vague on the concept of "fast lanes." The upshot was that ISPs wouldn't be allowed to slow down internet traffic, but in exchange for higher payments from content providers, they might be able to speed it up. Critics argued that creating fast lanes by definition relegated all other traffic to slow lanes.

MORE: 5 Freedoms You'll Lose Without Net Neutrality (Op-Ed)

Wheeler, however, insisted that he did not intend to allow the creation of fast lanes. In a statement on the FCC blog, Wheeler promised that "ISPs may not act in a commercially unreasonable manner to harm the Internet, including favoring the traffic from an affiliated entity."

The current proposal under Pai removes any regulation and suggests fast lanes are nothing to worry about. In fact, it assumes that ISPs will not engage in the practice at all.

“The ban on paid prioritization did not exist prior to the Title II Order and even then the record evidence confirmed that no such rule was needed since several large internet service providers made it clear that that they did not engage in paid prioritization and had no plans to do so,” it reads. “We seek comment on the continued need for such a rule and our authority to retain it.”
 
Fast lanes already exist, technically speaking. Content delivery networks (CDNs) are privately operated short cuts around the regular internet that shunt content, such as website data or media streams, rapidly and directly from content providers to localized servers spread out across the U.S. and the world. From each of those servers, the content can quickly hop to a nearby ISP and its customers in that area. Using CDNs and their dedicated lines is more efficient than depending on the regular internet to distribute high-bandwidth data. Most internet-based companies with enough infrastructure and resources pay to use a CDN.
 
Whether CDNs would be affected by net-neutrality regulation depends on the language of the regulation, but using a CDN is arguably not detrimental to the internet in the way that having to pay an ISP for preferential treatment might be.

Who is Ajit Pai?

Pai is the current chairman of the Federal Communications Commission , picked for the job by Trump in January 2017. Prior to holding that role, he served as a Republican FCC commissioner. He was appointed as a commissioner by President Barack Obama under recommendation from then-Senate Minority Leader (now Majority Leader) Mitch McConnell.  (By custom, the FCC has two Republican and two Democratic commissioners, and a chairman from the current president's party serves as the fifth commissioner.)

In 2001, Pai left a job at the Justice Department to work for Verizon Communications as associate general counsel. He left the job in 2003. In 2015, as a commissioner, he voted against Wheeler’s proposal to regulate the internet under Title II.

Right now, Pai is flanked by one Republican commissioner, Michael O’Rielly, and one Democrat, Mignon Clyburn. Trump has nominated Jessica Rosenworcel, a Democrat who served on the commission under Obama, to rejoin the commission, but her appointment has to be approved by the Senate.

Pai is the first Indian American to hold the position of FCC chairman.

What does Trump say about net neutrality?

Trump hasn’t said much about net neutrality and the open internet. But in 2014, he tweeted that Wheeler’s decision was a “power grab” that Trump blamed on Obama. Trump also referred to net neutrality as a digital “Fairness Doctrine,” referring to the former FCC rule that required broadcasters to balance each piece of political commentary with an opposing point of view. The abolition of the Fairness Doctrine in 1987 allowed conservative talk radio to flourish.

While Trump hasn’t said much more on the topic, his press secretary, Sean Spicer, said in March that Trump would reverse the “overreach” and called it an example of “bureaucrats in Washington… picking winners and losers.”

Who supports net neutrality regulation?

Supporters of net neutrality regulations include consumer advocates, human-rights groups and many tech companies and organizations. The nonprofit Electronic Frontier Foundation (EFF) is a vocal supporter of net neutrality, as are smaller organizations such as Fight for the Future and Freepress.
 
On May 7, 2014, more than 130 high-profile technology companies submitted an open letter to the FCC commissioners stating their support for an open Internet. Amazon, eBay, Facebook, Google, Microsoft, Netflix, Reddit, Twitter and Yahoo all threw their weight behind the letter, along with other signatories ranging from BitTorrent to Mozilla. Many more companies have joined the effort leading up to the FCC's Feb. 26 vote on common carrier regulation.
 
On the July 12, 2017 Day of Action, dozens of websites and organizations -- including the ACLU, GitHub, OkCupid, Amazon, Etsy, Vimeo, Mozilla and the EFF -- banded together again.

Who is against net neutrality regulation?

Internet service providers — like Verizon, AT&T and Comcast — are the main opponents of net-neutrality regulations. ISPs are seeing a large increase in network usage as more streaming content becomes available online.

Without net-neutrality regulations, ISPs argue, they would not have the power to create a better experience for users of certain services, by finding ways to cover the cost of the additional bandwidth usage. The ISPs would also like to prioritize traffic based on how sensitive packets are to delay. Slowing down an email by a few milliseconds, for example, wouldn't be noticeable, but it would be for data packets in a videoconference.

MORE: Decoded: Net Neutrality and the 'New' Broadband

Comcast, for example, is one of several ISPs to make a deal with Netflix to improve the video-streaming experience for Comcast subscribers. Netflix is now paying Comcast to have direct access to Comcast's network, which resulted in a 65 percent speed increase between January 2014 (before the deal was in place) and April 2014, according to Netflix. In a public statement in November 2014, Comcast has said that it supports net neutrality and the specific goals the President spelled out - but not enforcement under Title II.

How does net neutrality affect Netflix?

As Netflix's popularity grows, the amount of data sent to users via ISPs also increases. During prime time, Netflix traffic accounts for roughly 30 percent of all internet traffic, with YouTube in second place at roughly 20 percent, according to a November 2013 report by Canadian internet-monitoring firm Sandvine. This puts extra strain on the ISPs, and many users have complained that streaming speed has been negatively affected. ISPs have denied intentionally slowing Netflix traffic.
 
In a landmark decision, Netflix has agreed to pay Comcast to ensure smooth Internet streaming services to Comcast subscribers. This deal is already impacting streaming quality for Netflix customers using Comcast, who have seen a 65 percent speed increase between January and April 2014, according to Netflix.