Decoded: Net Neutrality and the 'New' Broadband

FCC Chairman Wheeler at a Net neutrality rally | Credit: Gigi Sohn, FCC

(Image credit: FCC Chairman Wheeler at a Net neutrality rally | Credit: Gigi Sohn, FCC)

Despite comedian John Oliver calling a Federal Communications Committee meeting on Net neutrality "the most boring thing I have ever seen," the notion that the government should prevent ISPs from favoring some Internet traffic over others has hit pop-culture consciousness — thanks to Oliver's own comic tirade last June, a speech by President Obama in November and general anxiety over Netflix buffering. The drama — such as it is for bureaucratic deliberations — peaked on Feb 4 with an article in Wired by FCC chairman Tom Wheeler announcing his intention to regulate ISPs as public utilities, using a legal provision called Title II of the Communications Act of 1934.

But an important prelude event was a Jan. 29 FCC vote upping the government's definition of "broadband" from 4 megabits-per-second (Mbps) download/1Mbps upload speeds (not enough to stream one Netflix video in HD) to 25 Mbps download/3 Mbps upload (enough for a 4K stream). These may sound like different topics, but Net neutrality and broadband speed regulations are wrapped together like rice and beans in a burrito. It's all due to a fierce Washington power play. 

MORE: What Is Net Neutrality? An FAQ

If you're concerned about either issue and want to write to Congress or the president, sign a petition, join a march or just comment intelligently on Facebook, you need to understand both topics

Congress vs. the FCC

After resisting regulations for a year, Republicans changed course in early January by introducing twin bills in the Senate and House that appear to give Net-neutrality advocates everything they want. But there's a catch: The GOP legislation takes away any say the FCC may have had over broadband. That includes not just regulating Net neutrality, but also defining broadband speed and allowing municipalities to create their own Internet service providers as an alternative to lackluster private companies. 

Here's how it works.

Republican draft legislation states that the law's purpose would be: 

to prohibit blocking lawful content and nonharmful devices, to prohibit throttling data, to prohibit paid prioritization, to require transparency of network management practices

But then comes the clincher:

to provide that broadband shall be considered to be an information service, and to prohibit the [Federal Communications] Commission or a State commission from relying on section 706 of the Telecommunications Act of 1996 as a grant of authority. 

"Information service," is a key phrase, because, based on two court decisions, the FCC can't impose Net-neutrality regulations on such companies. Hence Chairman Wheeler's proposal that the FCC vote at its Feb. 26 meeting to reclassify broadband providers as "common carriers" — essentially public utilities, using the Title II provisions. The Republican bills would make this impossible: Under those bills, the FCC could only enforce Congress's Net neutrality rules, not make its own.

Better bandwidth speed trap 

Section 706 of the Telecommunications Act of 1996 requires the FCC to push broadband adoption, through government funding and possible regulation, saying specifically that the FCC "shall encourage the deployment on a reasonable and timely basis of advanced telecommunications capability to all Americans." Republican legislation would block this, too, nullifying the FCC's ability to push broadband providers to increase speeds or as Wheeler has also proposed, overturn laws in states that forbid towns and cities from creating their own ISPs.

In theory, a law would be a better guarantor of Net neutrality, as demonstrated by the lawsuits that stopped FCC regulations in the past. And laws don't change as quickly as politics. Currently, three liberal FCC commissioners (including Wheeler) favor Net-neutrality regulations, and two conservatives strongly oppose them. That could easily change with a new president and new appointments. 

But if advocates of strict Net-neutrality requirements — including President Obama — go for the Republican legislation, they'll give up on requiring ISPs to speed up broadband, to expand more into rural areas, and to face competition from towns and cities. Obama's unlikely to let that happen. Republicans have majorities in Congress, but not enough to override a president's veto.

February will be a big month for the future of the Internet. Fans of political intrigue shows such as Netflix's House of Cards (which requires 25 Mbps broadband to stream in 4K) will have plenty of real-life entertainment.

Senior editor Sean Captain likes his Internet the way he likes his convenience stores: always open. Follow him @seancaptain. Follow us @tomsguide, on Facebook and on Google+.