FCC to make net neutrality the law

Today's vote to redefine broadband providers as 'common carriers' is a victory for proponents of the open Internet

Last updated: February 26, 2015 02:40 PM

Update: The FCC voted 3-2 today to reclassify broadband providers as common carriers under the Telecommunications Act of 1996, and to adopt rules to ensure net neutrality. Ellen Bloom, senior director of federal policy for Consumers Union, the policy and advocacy arm of Consumer Reports, said, "It would be hard to overstate how big of a deal this is for consumers and the future of the Internet. It's a huge win after years of fierce debates and massive opposition from the biggest providers of Internet service."

A long-anticipated vote on net neutrality is finally here. Today, the Federal Communications Commission is expected to take on new authority to enforce net neutrality rules, by classifying broadband services as "common carriers" under communications law. That category, which also applies to telephone lines, is designed to encompass services that transmit information without regard to the content. For instance, if you make a voice call, the phone company doesn't care whether you're talking to your mom or to a takeout restaurant—it just transmits the data. That's how most consumers regard their Internet service providers, or ISPs. Advocacy groups such as Consumers Union have long favored the move. Ellen Bloom, senior director of federal policy for Consumers Union, the policy and advocacy arm of Consumer Reports, says, "This vote will be an historic opportunity to keep the Internet open and competitive. All signs point to a big victory for consumers, a remarkable achievement for grassroots advocacy in the face of deep-pocketed opposition from the biggest providers of Internet service."

Today's FCC vote comes after a year of pendulum swings in the net neutrality debate, marked by lawsuits, activism, intense lobbying, and fighting in Congress. The FCC has said it received nearly 4 million public comments on the issue of net neutrality, the large majority of them in favor of it. Despite the drama, the near-term result for consumers should be the preservation of the status quo: The Internet will operate as it traditionally has, which we think is a good thing.

Here are answers to some of the questions raised by today's news.

1. Who is voting? And what does the FCC plan to do with its new authority?

The FCC's own commissioners will be making the decision. There are five of them, including the chair, Tom Wheeler. Two of the commissioners oppose the measure, while Wheeler and the two others have said they support it. Assuming that the vote goes Wheeler's way, a set of rules on net neutrality—already written, but not yet made public—will be released. While the full rules haven't been disclosed, the FCC released a summary of its plans on February 5, which listed three "Bright Line Rules" restricting practices "that are known to harm the Open Internet." They will apply to cable, phone, and wireless providers. First, broadband carriers won't be allowed to block access to lawful content and services. Second, providers won't be allowed to throttle lawful traffic based on its content or source. And, third, providers can't establish "fast lanes," charging a premium to content companies in order to speed their data along to customers.

2. Why would a broadband provider want to slow down its own transmissions?

As an example, the new rules would prevent Comcast from promoting Hulu Plus by blocking YouTube or some upstart video-streaming service from your home, or by slowing the downloads so much that they couldn't compete. That's a hypothetical situation, but a natural one since Comcast owns NBCUniversal, which in turn is a partial owner of Hulu. The founder of the Etsy online marketplace has worried publicly that if online businesses were allowed to pay for faster downloads to consumers' homes, his company could be pushed aside by major retailers such as Amazon and Walmart.

By the way, this isn't entirely about maintaining a competitive marketplace. The FCC rules will also prevent a broadband company from blocking content that it dislikes for political or public image reasons—while that might seem like a far-fetched possibility, the ACLU has a list of past abuses.

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3. Will the FCC regulate rates for Internet access?

Tom Wheeler, the chairman of the FCC, has repeatedly said that the agency wouldn't seek to regulate how much consumers pay for broadband access or try to oversee the details of bundling deals that link, for instance, TV and Internet access. The FCC has also pledged not to try to impose any new taxes or fees. (It already collects Universal Service fees from phone companies to pay for programs to expand access to telecommunications in schools, libraries, and some underserved areas.)

4. Will this be the end of the debate?

No. Tussles over net neutrality will continue in the courts (probably) and in Congress (certainly). Legislation discussed by Republicans in the House and Senate purportedly would do much of what the FCC is currently proposing—preventing blocking, throttling, and paid prioritization between the ISP and the consumer—while restricting the FCC's authority to oversee broadband providers. Critics of legislative action say that the agency needs a strong hand in order to enforce the rules, and to protect consumers from business practices that could arise in the future. But supporters argue that a new law would prevent the FCC from overreaching. (It's a telling detail that opponents of today's vote say that the FCC is planning to operate under the Communications Act of 1934, to make the law seem out-of-date and ponderous, while supporters cite the Telecommunications Act of 1996, which updated the older legislation to account for new and emerging technologies.)

Even if no new laws are passed, the FCC will have to make a number of judgment calls in the future. In particular, it's not clear what the final rules will mean for paid "peering" arrangements, which operate far upstream from the consumer, giving content providers a direct link to an ISP to ensure fast transmissions. Last year Netflix signed such deals with Comcast, Verizon, and AT&T, but the video-streaming service publicly objected to the practice. It seems possible that the FCC could allow such deals on a case-by-case basis if they are deemed to serve consumers' interests.

—Jerry Beilinson

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