Donald N. Barclay III
Donald Barclay is a Resident Forum Blogger who examines current legal issues in the field of modern computer technology.
There has been a battle brewing for some time between Internet innovators and Internet service providers (ISPs). For a few years, each party played nicely with one another. The cold war between companies whose revenues are contingent on Internet services and the corporations that facilitate Internet access seemed to be at a lull. That changed last year when Comcast and Verizon were allowed to assess Netflix at a premium, for tunnelling its streaming service to customers just trying to catch up on their favorite TV show. In other words, Netflix was charged more simply because it used more space on the Internet. Comcast’s argument is that the increasing number of services like Netflix strains its existing infrastructure, and improvements need to be made to meet demand. The other side’s argument is that Comcast provides a service, and it should not be surprised when people actually use it.
To put this circumstance in perspective, imagine if gas stations charged trucking companies $3/gal of gas while regular drivers only were charged $2.70/gal of gas, for the same exact gasoline. The gas station’s argument would be that trucks drive more, and consume more gas, so they should pay more for their fuel. This is flawed logic on the part of the theoretical greedy gas station, but to large ISPs this would seem like a great idea
Comcast won a small battle in early 2014 when Netflix agreed to pay Comcast a premium for the service it provides. It seemed like large ISPs were winning the net neutrality war. Fortunately, this all changed when President Obama surprisingly called on the FCC to change how it regulates ISPs. On February 3, 2015, the FCC announced that it will classify both cellular and landline based Internet service providers as public utilities under Title II of the Communications Act of 1934. What does Title II do for ISPs? Well taken from the words of the text itself, a Title II common carrier is barred from “[making] any unjust or unreasonable discrimination in charges, practices, classifications, regulations, facilities, or services.” This brings a high level of scrutiny to the actions taken by ISPs, and it allows the open-internet-focused FCC to make determinations on service provider’s actions that may be discriminatory in nature. The government has determined that the internet is now so vital that it cannot be subject to corporate practices that could be at the disadvantage of consumers.
So, what will the public see if this designation survives the legal battle to come? We will hopefully see more options as to who can provide us with Internet services. Utility poles will become available to ISPs that do not provide traditional telecom services. A company that comes to mind is Google. Google has been trying to expand into providing Internet service for the last few years with Google Fiber. However, because the Internet was not a public utility, Google was not able to run its infrastructure in the same manner as companies like Comcast and Verizon. With the reclassification of the Internet, Google and other motivated newcomers will be able to give consumers more choice.
This change will not go unchallenged. Telecom giants have already begun filing suits against the FCC rules. This year, the European Commission heard cases from ISPs and consumers, and ultimately conceded to ISPs to some extent. It should be noted that European customers only pay about 33% of what American’s pay for internet, phone, and television. This has people asking, is the battle really over Net Neutrality “fast lanes”, or should it be focused on the bigger issues: high costs for what is now considered a public utility?
Published on November 17, 2015.