THE BATTLE OVER NET NEUTRALITY - Chicago-Kent Blogsblogs.kentlaw.iit.edu/perrittseminar/files/2017/12/...2 The Battle Over Net Neutrality [11-May-18 INTRODUCTION The dust is settling

THE BATTLE OVER NET NEUTRALITY

Allison Haas1

INTRODUCTION 2

I: HISTORY AND THE LAW OF NET NEUTRALITY 2 A. What is “Net Neutrality?” 2

1. What are “Internet Service Providers?” 3 2. The Power 5 3. Goals of Net Neutrality 6

B. A Timeline of Net Neutrality 7 1. Pre-2015: Broadband is Considered an “Information Service” 8 2. The Net Neutrality Era 10 3. The Fight to “End” Net Neutrality 11

II: THE FEARS FROM BOTH SIDES 12 A. Against Net Neutrality 12 B. Support Net Neutrality 15

1. The States Weigh-in 18

III: WHY THIS ALL ISN’T A BIG DEAL 20 A. Why the Hype? 20

1. The Media 21 2. The Internet Users 22

B. There is Still a Safety Net 27 1. The Federal Trade Commission 27 2. The FTC’s Authority 28 3. How Effective is the FTC? 29 4. FTC-FCC Cooperation 31

CONCLUSION 32

1 This paper was prepared for the Spring 2018 Seminar in Regulation of New Technologies

2 The Battle Over Net Neutrality [11-May-18

INTRODUCTION

The dust is settling in the wake of the Federal Communications Commission’s (FCC) December 14, 2017 vote to repeal net neutrality.2 The campaign to repeal net neutrality was led by Trump-appointed FCC Chairman Ajit Pai. The time leading up to the vote and continuing after has been fraught with a near frantic response from parties on both sides of the issue. This paper seeks to show why this uproar was unwarranted.

The first part of this paper discusses the law of net neutrality since the concept's conception in 2003 and the FCC’s authority to regulate internet service providers under net neutrality.

The second part of this paper discusses the views and fears from both sides of the net neutrality debate.

The third part of this paper discusses why this issue is undeserving of the vitriol being expressed by those on either side of the fence.

I: HISTORY AND THE LAW OF NET NEUTRALITY

A. What is “Net Neutrality?”

Net neutrality is a fairly nebulous term that has evolved slightly since the Internet became more widely accessible in the late 1980s/early 1990s. Today, it means preventing Internet Service Providers (ISPs) from prioritizing certain internet traffic based on source, destination, or content.3 The Internet can be conceptualized as a series of tubes, with end users at one end and content providers at the other. ISPs provide these hypothetical tubes and can control the flow and direction of traffic. Net neutrality regulations restrict ISPs from blocking, throttling, or prioritizing the speed and direction of traffic flowing within these tubes based on either source, destination, or content.

The battle over net neutrality has been long and well fought by the parties

2 FCC, Declaratory Ruling, Report and Order, (December 14, 2017), https://apps.fcc.gov/edocs_public/attachmatch/FCC-17-166A1.pdf.

3 "Net Neutrality." Merriam-Webster.com. Merriam-Webster, n.d. Web. 25 Apr. 2018. (“net neutrality: the idea, principle, or requirement that Internet service providers should or must treat all Internet data as the same regardless of its kind, source, or destination”)

11-May-18] The Battle Over Net Neutrality 3

on both sides. Individual consumers and big web-based companies, like Amazon and Google, tend to fight in support of net-neutrality regulations. The ISPs themselves and big tech companies, like IBM and Cisco, tend to resist net neutrality regulations

1. What are “Internet Service Providers?”

The Internet has four major participants: (1) End users, (2) Broadband providers, (3) Backbone networks, and (4) Edge (content) providers.4

It is important to define which of these participants are considered Internet service providers in the context of net neutrality. Some companies fall into more than one of these categories. These companies need to know what portions of their offering can be regulated under net neutrality.

Edge providers (like Netflix, Google, and Amazon) provide content, applications, or services over the internet. End users connect to the internet through a broadband provider, which could be any of several technologies such as cable modem service, digital subscriber line (DSL) service, and fiber optics. “Broadband providers interconnect with backbone networks—“long-haul fiber-optic links and high-speed routers capable of transmitting vast amounts of data.”5

According to the FCC's 2015 Open Internet Order6 these regulations only apply to broadband providers. The Order explicitly states that its rules apply to the “consumer-facing service that broadband networks provide, which is known as ‘broadband Internet access service’ (BIAS).” The Order goes on to define BIAS as:

A mass-market retail service by wire or radio that provides the capability to transmit data to and receive data from all or substantially all Internet endpoints, including any capabilities that are incidental to and enable the operation of the communications service, but excluding dial-up Internet access service. This term also encompasses any service that the Commission finds to be providing a functional equivalent of the service described in the previous

4 U.S. Telecom Assn. v. Fed. Commun. Commn., 825 F.3d 674, 690 (D.C. Cir. 2016) 5 Id. 6 In the Matter of Protecting and Promoting the Open Internet, 30 F.C.C. Rcd. 5601,

5610 (F.C.C. 2015).


sentence, or that is used to evade the protections set forth in this Part.

…..

… BIAS does not include enterprise services, virtual private network services, hosting, or data storage services. Further, we decline to apply the open Internet rules to premises operators to the extent they may be offering broadband Internet access service as we define it today.” 7

An ongoing Ninth Circuit case illustrates which of the Internet service providers fall under the purview of the net neutrality regulations. This case consolidates twelve lawsuits brought by more than three dozen entities against the FCC to challenge its repeal of the 2015 Open Internet Order. 8 These entities support the heightened regulation of ISPs under the net neutrality regime.

Three trade groups, each representing a type of Internet or wireless broadband service, filed motions to intervene in the case on behalf of the FCC because they support the repeal of net neutrality. The first, NCTA – The Internet & Television Association (formerly the National Cable & Telecommunications Association, and commonly known as the NCTA), represents cable multiple-system operators (MSOs) including Comcast, Charter, Cox and Altice. The second, the Cellular Telecommunications Industry Association (CTIA), represents the biggest mobile carriers, such as AT&T, Verizon Wireless, T-Mobile and Sprint. And the third, USTelecom (The Broadband Association), represents wireline telecom companies such as AT&T and Verizon.9

These associations are willing to intervene on behalf of the FCC because their members are representative of the broadband Internet service providers directly impacted by these regulations. They are interested parties that are weighing in on the fight against Net Neutrality. Some are facing heightened

7 Id. 8 In the Matter of Protecting and Promoting the Open Internet, Rpt. and Or. on Remand,

Declaratory Uling, and Or. Fcc 15-24, MCP 128, 2015 WL 1509649, at *1 (F.C.C. Mar. 12, 2015);

Jon Brodkin, FCC must defend net neutrality repeal in court against dozens of litigants, Ars Technica (2018), https://arstechnica.com/tech-policy/2018/03/fcc-must-defend-net-neutrality-repeal-in-court-against-dozens-of-litigants/.

9 Sean Buckley, Incumbent telco, cable lobbies ACA, NCTA, USTelecom line up to defend FCC's net neutrality repeal, FierceTelecom (2018), https://www.fiercetelecom.com/telecom/incumbent-telco-cable-lobbies-aca-ntca-ustelecom-line-up-to-defend-fcc-s-net-neutrality.


regulations for services that they provide in different technologies. For example, AT&T provides both mobile services and wireline telecommunication services.

2. The Power

The next question that must be resolved is who has the power to regulate the broadband Internet service providers. If someone wants to sue a broadband provider for improperly prioritizing certain traffic, to what agency can they bring their legal action? While the 2015 Open Internet Order was in effect, the FCC had direct authority to regulate broadband providers. This authority comes from Section 706 of the Telecommunications Act of 199410 and Titles II and III of the Communications Act of 193411 as amended by Title I of the Telecommunications Act. Section 706 of the Telecommunications Act states that the FCC is to "encourage the deployment on a reasonable and timely basis of advanced telecommunications capability to all Americans."12

Titles II and III of the Communications Act require common carriers to furnish their communication service upon reasonable request and in accordance with the orders of the FCC.13 The Communications Act defines “common carriers” as any person engaged as a common carrier for hire, in interstate or foreign communication by wire or radio or in interstate or foreign radio transmission of energy.14 The Telecommunications Act expanded that definition to include telecommunication services.15 The 2015 Open Internet Order reclassified broadband service from an “information service” to a “common carrier” under Title II of the Communications Act.16 The Order then goes on to say “blocking and throttling of broadband Internet access services is an unjust and unreasonable practice under section 201(b).”17

10 Telecommunications Act, TELECOM-LH 1, 1996 WL 33665750 (A.&P.L.H). 11 Communications Act, 47 U.S.C.A. §§ 151-623 (1934). 12 Telecommunications Act, TELECOM-LH 1, 1996 WL 33665750 (A.&P.L.H). 13 47 U.S.C.A. § 201 (1934). 14 47 U.S.C.A. § 153 (1934). 15 Telecommunications Act, TELECOM-LH 1, 1996 WL 33665750 (A.&P.L.H). 16 In the Matter of Protecting and Promoting the Open Internet, 30 F.C.C. Rcd. 5601,

5734 (F.C.C. 2015). 17 Id. at 5726.


In early 2005, the FCC brought a case that involved a telephone carrier, Madison River Communications, LLC, blocking voice over IP services.18 Ultimately the case settled. Madison River agreed to stop blocking ports used for voice over IP or preventing customers from using voice over IP applications. They to make a voluntary payment of $15,000 to the United States Treasury in exchange for the termination of the investigation.

This case is not quite directly analogous to the problem at hand, in 2005, Internet broadband was still classified as an “information service” and telephone carriers have always been a classic example of a “common carrier,” which allowed the FCC to utilize Title II of the Communications Act to regulate them. This case illustrates the type of action that net neutrality is trying to prevent: the blocking or throttling of service. This case also example of the FCC exercising their authority to regulate a common carrier.

3. Goals of Net Neutrality

The 2015 Order stated its lofty goal: “to protect and promote Internet openness as platform for competition, free expression and innovation; a driver of economic growth; and an engine of the virtuous cycle of broadband deployment.” 19

To accomplish this, the 2015 Order set forth a number of rules.

No blocking

A person engaged in the provision of broadband Internet access service, insofar as such person is so engaged, shall not block lawful content, applications, services, or non harmful devices, subject to reasonable network management.20

No throttling

A person engaged in the provision of broadband Internet access service, insofar as such person is so engaged, shall not impair or degrade lawful Internet

18 In the Matter of Madison River Commun., LLC and Affiliated Companies, 20 F.C.C. Rcd. 4295, 4296 (F.C.C. 2005), https://apps.fcc.gov/edocs_public/attachmatch/DA-05-543A2.pdf.

19 In the Matter of Protecting and Promoting the Open Internet, 30 F.C.C. Rcd. 5601, 5720 (F.C.C. 2015).

20 Id. at 5607.


traffic on the basis of Internet content, application, or service, or use of a non-harmful device, subject to reasonable network management.21

No paid prioritization

A person engaged in the provision of broadband Internet access service, insofar as such person is so engaged, shall not engage in paid prioritization.

“Paid prioritization” refers to the management of a broadband provider network to directly or indirectly favor some traffic over other traffic, including through use of techniques such as traffic shaping, prioritization, resource reservation, or other forms of preferential traffic management, either (a) in exchange for consideration (monetary or otherwise) from a third party, or (b) to benefit an affiliated entity.22

No unreasonable interference or unreasonable disadvantage to consumers or edge providers

Any person engaged in the provision of broadband Internet access service, insofar as such person is so engaged, shall not unreasonably interfere with or unreasonably disadvantage (i) end users’ ability to select, access, and use broadband Internet access service or the lawful Internet content, applications, services, or devices of their choice, or (ii) edge providers’ ability to make lawful content, applications, services, or devices available to end users. Reasonable network management shall not be considered a violation of this rule.23

Requiring enhanced transparency

A person engaged in the provision of broadband Internet access service shall publicly disclose accurate information regarding the network management practices, performance, and commercial terms of its broadband Internet access services sufficient for consumers to make informed choices regarding use of such services and for content, application, service, and device providers to develop, market, and maintain Internet offerings.24

B. A Timeline of Net Neutrality

The timeline of net neutrality is central to understanding why a

21 Id. 22 Id. at 5607-08. 23 Id. at 5609. 24 Id.


government agency, the FCC, has made the decision to repeal the net neutrality protections from the 2015 Open Internet Order

1. Pre-2015: Broadband is Considered an “Information Service”

Prior to the 2015 Open Internet Order, broadband service was categorized as an “information service” as opposed to a “telecommunications service” (like telephone services) which is considered a “common carrier.”25

On January 12, 2003, Tim Wu, a professor at Columbia Law School, published an article coining the term “Network Neutrality.” Wu defines net neutrality as “an Internet that does not favor one application (say, the world wide web), over others (say, email).” 26

Throughout 2004-2012, there were many failed attempts at establishing “net neutrality” regulations. Several bills were attempted, none passed. For example, the May 1, 2006 Network Neutrality Act failed in Congress.27

In 2007, BitTorrent sued Comcast, which was throttling and blocking BitTorrent traffic during peak hours. The parties reached an agreement to work together to manage network traffic.28 Comcast agreed to adopt a protocol-neutral stance "as soon as the end of [2008]", and explore ways to "more effectively manage traffic on its network at peak times."29 In return, BitTorrent was to work on reducing the amount of bandwidth it consumes so that its software would run more efficiently on Comcast’s network.30

On August 1, 2008, The FCC issued an order prohibiting Comcast from discriminating against peer-to-peer traffic.31 Comcast ultimately agreed to a

25 Id. at 5614. 26 Tim Wu, Network Neutrality, Broadband Discrimination, 2 J. TELECOMM. & HIGH

TECH. L. 141, 145 (2003). 27 Edward "Ed" Markey, Network Neutrality Act of 2006 (2006 - H.R. 5273),

GovTrack.us (2006), https://www.govtrack.us/congress/bills/109/hr5273. 28 Vishesh Kumar, Comcast, BitTorrent To Work Together On Network Traffic, The

Wall Street Journal (2008), https://www.wsj.com/articles/SB120658178504567453?mod=googlenews_wsj.

29 Id. 30 Id. 31 In the Matters of Formal Compl. of Free Press and Pub. Knowledge Against Comcast

Corp., 23 F.C.C. Rcd. 13028, 13028 (F.C.C. 2008).


settlement with BitTorrent later in 2008. Per the settlement, Comcast was to pay $16 million to BitTorrent, admitting no wrongdoing.32

Despite the settlement in the BitTorrent matter, Comcast appealed the FCC’s August 1, 2008 Order.33 At the time, broadband Internet was still classified as an “information service,” so the only authority that the FCC had to issue the regulations from the 2008 Order was under the general provisions of Title I of the Communications Act of 1934. The United States Court of Appeals for the District of Columbia Circuit held that the FCC did not have the authority under Title 1 to regulate comcast’s Internet service. 34The Court vacated the 2008 order issued by the FCC that asserted jurisdiction over Comcast's network management policies and censured Comcast from interfering with its subscribers' use of BitTorrent.35

On January 20, 2009, the Obama presidency began and the fight for net neutrality took on a new vigor. On May 6, 2010, just under a year after his appointment by President Obama on June 29, 2009, FCC Chairman Genachowski announced a “third way” to regulate broadband lawfully.36 This “third way” involved reclassifying broadband service as a telecom service.37

On December 21, 2010, the FCC issued an Open Internet Order that stated Internet service providers had to be transparent and couldn’t block or slow down consumer access to content.38 On September 30, 2011, almost immediately after the 2010 Open Internet Order took effect, Verizon challenged the order (to the D.C. Circuit), questioning the FCC’s authority to

32 Geoff Duncan, Comcast to Pay $16 Million for Blocking P2P Applications, Digital Trends (2009), https://www.digitaltrends.com/computing/comcast-to-pay-16-million-for-blocking-p2p-applications/.

33 Comcast Corp. v. F.C.C., 600 F.3d 642 (D.C. Cir. 2010). 34 Id. at 661. 35 Id. 36 Statement by FCC Chairman Julius Genachowski, "The Third Way: A Narrowly

Tailored Broadband Framework", Federal Communications Commission (2010), https://www.fcc.gov/document/statement-fcc-chairman-julius-genachowski-third-way-narrowly.

37 Steven A. Augustino, FCC's Genachowski proclaims a "third way" to apply net neutrality, Lexology (2010), https://www.lexology.com/library/detail.aspx?g=4c732719-586c-4daf-8cf8-e08bed1d8228.

38 In the Matter of Preserving the Open Internet Broadband Indus. Practices, 25 F.C.C. Rcd. 17905, 17906 (F.C.C. 2010).


impose the Open Internet rules.39 On January 14, 2014, the court held that the FCC acted outside its authority and overturned the Open Internet rules. The court held that while the FCC does have authority to promote the growth of the internet, the FCC has no authority to enforce network neutrality rules as long as service providers were not identified as "common carriers."40

2. The Net Neutrality Era

In response to the Verizon decision, on February 26, 2015, the FCC voted to pass a new Open Internet Order to reclassify broadband as a telecommunications service, a type of common carrier, subject to its regulatory authority under Title II of the Communications Act of 1934 as modified by Titles I and II of the Telecommunications Act of 1996.41 “Telecommunications service” is defined in the Communications Act as the offering of telecommunications for a fee directly to the public, regardless of the facilities used.42 Historically this classification applied to providers of services such as telegrams and telephones. The FCC argued, however, that by 2015 the Internet had evolved to the point where it was no longer simply an information service.43 In the 2015 Order, the FCC says that it should reclassify broadband as common carriage because “times and usage patterns have changed, and it is clear that broadband providers are offering both consumers and edge providers straightforward transmission capabilities that the Communications Act defines as a ‘telecommunications service.’”44

The result of this classification was that the FCC finally could wield the Communications Act and the Telecommunications Act to prevent broadband Internet service providers from prioritizing traffic based on where it is going or coming from. The 2015 Order echoes the 2010 Order, by preventing

39 Verizon v. F.C.C., 740 F.3d 623 (D.C. Cir. 2014) 40 Id. at 649-50. 41 In the Matter of Protecting and Promoting the Open Internet, 30 F.C.C. Rcd. 5601,

5603 (F.C.C. 2015); Tony Mattke, FCC approves net neutrality rules, reclassifies broadband as a utilityI,

Router Jockey (2015), https://routerjockey.com/2015/02/26/fcc-approves-net-neutrality-rules-reclassifies-broadband-as-a-utility/.

42 Communications Act, 47 U.S.C.A. § 153 (1934). 43 In the Matter of Protecting and Promoting the Open Internet, 30 F.C.C. Rcd. 5601,

5614 (F.C.C. 2015). 44 Id.


“Blocking, Throttling, and Paid Prioritization” of broadband services.45

The US Telecom Association responded to the 2015 Order by immediately suing the FCC.46 US Telecom challenged the FCC’s authority to instate the rules of the 2015 Open Internet Order and sought to have the Order vacated, as the court did to the 2010 Order in Verizon.47 The court, however, held that the reclassification of broadband internet service in 2015 Open Internet Order did grant the FCC the power to regulate bandwidth service providers.48 The FCC had finally won their fight for net neutrality.

3. The Fight to “End” Net Neutrality

On January 20, 2017, the Trump presidency began. Three days later, on January 23, 2017, Ajit Pai was appointed FCC Chairman.49 President Donald Trump has consistently maintained his position that net neutrality was an overreach of power,50 and on April 26, 2017, Pai announced his plan to roll back net neutrality rules.51

On December 14, 2017, the FCC voted 3 to 2, along party lines, in favor of reversing Title II regulations in the form of a new Order.52 The confusingly named Restoring Internet Freedom Order reversed the classification of broadband service as a common carrier, reinstating its classification as an

45 Id. at 5621. 46 U.S. Telecom Assn. v. Fed. Commun. Commn., 825 F.3d 674 (D.C. Cir. 2016). 47 Id. at 689 48 Id. at 706; Claire Groden, A U.S. Appeals Court Upholds Net Neutrality! Now What?, Inverse

(2016), https://www.inverse.com/article/16989-us-appeals-court-net-neutrality. 49 Ajit Pai, FCC Chairman, https://www.fcc.gov/about/leadership/ajit-pai. 50 Steve Lohr, Net Neutrality Is Trump's Next Target, Administration Says, The New

York Times (2017), https://www.nytimes.com/2017/03/30/technology/net-neutrality.html. (“Mr. Spicer [White House spokesman,] said President Trump had “pledged to reverse this overreach.” The Obama-era rules, Mr. Spicer said, were an example of “bureaucrats in Washington” placing restrictions on one kind of company — internet service suppliers — and “picking winners and losers.”)

51 Chairman Pai Speech on the Future of Internet Regulation: https://transition.fcc.gov/Daily_Releases/Daily_Business/2017/db0427/DOC-344590A1.pdf

52 FCC, Declaratory Ruling, Report and Order, (December 14, 2017), https://apps.fcc.gov/edocs_public/attachmatch/FCC-17-166A1.pdf.


information service, and rescinded the majority of the rules put forth by the 2015 Open Internet Order.53 This order’s name signifies that it frees broadband service providers from regulation, thereby “freeing” the Internet from the FCC thumb. The FCC stated that the Restoring Internet Freedom Order returns the “traditional light-touch framework that was in place until 2015.”54 The FCC's Restoring Internet Freedom Order was published on February 22, 2018 in the Federal Register and was scheduled to take effect on April 23, 2018.55

II: THE FEARS FROM BOTH SIDES

The 2017 Restoring Internet Freedom Order, and its effective killing of net neutrality, was met with hysteria, from every direction. Those in favor of net neutrality saw this as the end of the Internet as it exists today. Those against net neutrality fear that heightened regulation under the net neutrality regime stifles the ability for the internet infrastructure to grow.

A. Against Net Neutrality

Opponents of net neutrality are typically invested in the infrastructure of the internet and the future of that infrastructure. In addition to the trade groups discussed in part two (the NCTA, the CTIA, and The Broadband Association), some conservative, free market, and consumer advocacy groups, such as FreedomWorks, Americans for Tax Reform, and American

53 Restoring Internet Freedom Order, https://apps.fcc.gov/edocs_public/attachmatch/FCC-17-166A1.pdf

54 Restoring Internet Freedom, Federal Communications Commission (2018), https://www.fcc.gov/restoring-internet-freedom;

Brian Fung, The FCC just voted to repeal its net neutrality rules, in a sweeping act of deregulation, The Washington Post (2017), https://www.washingtonpost.com/news/the-switch/wp/2017/12/14/the-fcc-is-expected-to-repeal-its-net-neutrality-rules-today-in-a-sweeping-act-of-deregulation/?utm_term=.f8b612d6bba4;

FCC Media Release, https://apps.fcc.gov/edocs_public/attachmatch/DOC-348261A1.pdf

55 Brian Fung, The FCC's vote repealing its net neutrality rules is finally official. Here's what happens now., The Washington Post (2018), https://www.washingtonpost.com/news/the-switch/wp/2018/02/22/the-fccs-net-neutrality-rules-will-die-on-april-23-heres-what-happens-now/?utm_term=.744f5aec9447;

Restoring Internet Freedom, 83 FR 7852-01, https://www.federalregister.gov/documents/2018/02/22/2018-03464/restoring-internet-freedom.


Conservative Union, also supported the FCC’s repeal of net neutrality.56 These groups comprised three of twenty-four consumer advocacy groups that co-authored and signed a letter urging Congress to “oppose any attempts to use the Congressional Review Act57 to overturn the Restoring Internet Freedom Order.”58

This letter echoes the FCC’s current stance that net neutrality is too much government control; the “light touch” framework that existed before net neutrality “allowed the web to grow rapidly, revolutionizing commerce around the world, creating countless jobs, and improving the lives of billions, all while keeping reasonable consumer protection mechanisms in place.”59 Both the FCC and these activist groups would like to let the market equalize these problems, “[t]he best consumer safeguard in any market is always vigorous competition.”60

Internet Service Providers (ISPs) also oppose net neutrality regulations. They want to be able to prioritize bandwidth use for “critical” traffic, such as hospitals, schools, etc., and regulate bandwidth during “peak” traffic periods, like what Comcast wanted to do in 2007 when it throttled BitTorrent traffic.61

56 Jenni Bergal, Net Neutrality Fight Shifts To The States, The Huffington Post (2018), https://www.huffingtonpost.com/entry/net-neutrality-fight-shifts-to-the-states_us_5a68ab8de4b0778013de4e3c.

57 Congressional Review Act (CRA), 5 U.S.C.A. §§ 801-808 (1996). 58 Patrick Hedger, Coalition of 23 Other Groups Demand Congress Support FCC's

Restoring Internet Freedom Order, FreedomWorks (2018), http://www.freedomworks.org/content/freedomworks-coalition-23-other-groups-demand-congress-support-fccs-restoring-internet.

59 Id.; Ajit Pai, Restoring a light touch to Internet regulations, The Washington Times (2017),

https://www.washingtontimes.com/news/2017/dec/5/restoring-a-light-touch-to-fcc-internet-regulation/.

60 Patrick Hedger, Coalition of 23 Other Groups Demand Congress Support FCC's Restoring Internet Freedom Order, FreedomWorks (2018), http://www.freedomworks.org/content/freedomworks-coalition-23-other-groups-demand-congress-support-fccs-restoring-internet.

61 Cinnamon Rogers, Viewpoints: What everyone gets wrong about net neutrality, azcentral (2017), https://www.azcentral.com/story/opinion/op-ed/2017/09/14/net-neutrality-internet-traffic-throttling-myth/658476001/;

Vishesh Kumar, Comcast, BitTorrent To Work Together On Network Traffic, The Wall Street Journal (2008), https://www.wsj.com/articles/SB120658178504567453?mod=googlenews_wsj. (“The cable operator said it must have the means to slow the delivery of some traffic on its network in order to provide adequate service to its overall customer base.”)


Neither of these goals are particularly offensive or illogical. Electrical transmission companies, for example, also regulate their service during “peak” periods to reduce the strain on their infrastructure.62

The broadband Internet service providers have consistently stated that, even without the requirements for net neutrality, they have no intention of engaging in the blocking or throttling activities that opponents are afraid of.63 Broadband Internet service providers have a slightly different stance on the issue of prioritization. “Priority is crucial to stability and reliability of already fast internet service. In fact, prioritization in different forms has existed for years and yet, as FCC Commissioner Michael O’Rielly recently said, there is ‘no credible evidence of harms to businesses or consumers.’”64

Large tech companies with an interest in the broadband infrastructure, like IBM, Intel, Juniper, Qualcomm, and Cisco, are also on the list of net neutrality opponents. These companies claim that net neutrality deters investment into broadband infrastructure, and will actually hurt the expansion of this infrastructure, and therefore also the global economy.65

But how would the heightened regulation of net neutrality deter investment? As the Chairman has noted, “‘The more heavily you regulate something, the less of it you’re likely to get.’ That is “Regulation 101.” Evidence of a noticeable decline in investment by ISPs after broadband was reclassified as a common carrier and subject to extensive regulation under Title II of the communications laws supports this observation – and should

62 Demand for electricity changes through the day, U.S. Energy Information Administration (EIA) (2011), https://www.eia.gov/todayinenergy/detail.php?id=830. (“Electric power systems must match generation and load in real time, with tight tolerances. As a result, both system stress and prices can vary considerably throughout the day.”)

63 David L. Cohen, Reconfirming Comcast's Commitment to an Open Internet and Net Neutrality, Comcast Corporation (2017), https://corporate.comcast.com/comcast-voices/fcc-to-vote-to-restore-internet-freedom-and-innovation. (“’We do not and will not block, throttle [slow down], or discriminate against lawful content,’ said Comcast’s senior executive vice president, David Cohen”)

64 Cinnamon Rogers, Viewpoints: What everyone gets wrong about net neutrality, azcentral (2017), https://www.azcentral.com/story/opinion/op-ed/2017/09/14/net-neutrality-internet-traffic-throttling-myth/658476001/.

65 Michael Santorelli, Cutting Through The Noise: Net Neutrality Is An Infrastructure Issue, Forbes (2017), https://www.forbes.com/sites/washingtonbytes/2017/05/18/cutting-through-the-noise-net-neutrality-is-an-infrastructure-issue/#2c756c683e60. (“net neutrality, at bottom, is an infrastructure issue. Indeed, Chairman Pai seeks to remedy the prior FCC’s missteps in an effort to unlock much-needed additional investment in broadband networks.”)


concern us all as consumers.” 66

B. Support Net Neutrality

These big players fighting against net neutrality (the FCC, conservative advocacy groups, broadband Internet service providers, and big tech companies) pack some serious political weight.67 Those who support net neutrality are doing all they can to defend the Internet as it was under the 2015 Open Internet Order. These proponents for net neutrality advocated a policing force that kept an eye on the broadband service providers.

Contrary to the conservative advocacy groups fighting against net neutrality, more liberal consumer advocacy groups have joined in on the fight for net neutrality. These groups, like Consumers Union, speak for the individual consumers but from a more powerful position. Their stronger voice puts them in a better position to make changes.68

Statistically, individual consumers support net neutrality regulations.69In order for the market to control the broadband Internet service providers, the consumers must have a choice of providers. There are limited, or no, broadband ISP options in many areas, especially in rural areas.70 But the lack

66 Id.; Cinnamon Rogers, Viewpoints: What everyone gets wrong about net

neutrality, azcentral (2017), https://www.azcentral.com/story/opinion/op-ed/2017/09/14/net-neutrality-internet-traffic-throttling-myth/658476001/. (“No company can invest in the next great thing in this uncertain environment.”)

67 Susan Crawford, Ajit Pai's Shell Game, Wired (2017), https://www.wired.com/story/net-neutrality-fiber-optic-internet/. (“On the Hill, the public will be out-lobbied at every turn by the essentially unlimited resources of Comcast, Charter, CenturyLink, Verizon, and AT&T”).


69 James K. Willcox, Survey: Consumers Favor Strong Net Neutrality Rules, Consumer Reports (2017), https://www.consumerreports.org/net-neutrality/most-consumers-still-want-strong-net-neutrality-rules/. (“A new Consumer Reports survey shows that a majority of Americans favor net neutrality rules that prevent internet service providers (ISPs) from blocking lawful online content.”)

70 Larry Thaler, Hey FCC: #theboxainttheproblem, TvTechnology (2016), https://www.tvtechnology.com/opinions/hey-fcc-theboxainttheproblem. (“Most U.S. consumers have one or at best two choices for broadband. Their broadband provider holds


of market control is not the only concern of individual consumers. A search for net neutrality in a search engine will turn up images like this:

71 This practice of providing broadband Internet with restrictions, such as

by only permitting access to certain websites or by subsidizing the service with advertising is called “zero-rating.” 72 This practice is a major concern of Internet consumers who are used to paying an internet bill and in exchange having unfettered access to the entirety of the internet.73

all the cards.”); Aja Romano, Net neutrality is now officially on life support. Here's what happens next.,

Vox (2017), https://www.vox.com/2017/12/14/16774148/net-neutrality-repeal-explained. (“Rural areas of the US — where internet access is already scarce due to a lack of ISPs operating there — will be further subjected to corporatization and monopolization of their internet infrastructure.”)

71 Aja Romano, Net neutrality is now officially on life support. Here's what happens next., Vox (2017), https://www.vox.com/2017/12/14/16774148/net-neutrality-repeal-explained.

72 Zero-rating, Wikipedia (2018), https://en.wikipedia.org/wiki/Zero-rating. 73 Aja Romano, Net neutrality is now officially on life support. Here's what happens

next., Vox (2017), https://www.vox.com/2017/12/14/16774148/net-neutrality-repeal-explained. (“[ISPs will] be able to charge you more to access sites you currently visit for


Smaller companies, startups, and large web-based companies have also joined the fight for net neutrality. These companies include Mozilla, Vimeo, and etsy. Additionally, the Internet Association—a lobby group for Amazon, Google, Facebook, Netflix, and other Web companies, has been working hard to promote net neutrality.74

These companies are concerned that without net neutrality they will have to pay the broadband providers to get preferential traffic and speed to their webpages. Slow speeds can cripple a website-based company. Studies have shown that “47 percent of visitors expect a website to load in less than 2 seconds, and 40 percent of visitors will leave the website if the loading process takes more than 3 seconds.”75

Smaller internet companies and startups have the additional concern that their sites won’t load as quickly as established competition that is able to pay the fee to have its site in an internet “fast lane.”76 Further, as Tim Berners-

free, cap how much data you’re allowed to use, redirect you from sites you are trying to use to sites they want you to use instead, and block you from being able to access apps, products, and information offered by their competitors or other companies they don’t like.”)

74 Sean Buckley, Incumbent telco, cable lobbies ACA, NCTA, USTelecom line up to defend FCC's net neutrality repeal, FierceTelecom (2018), https://www.fiercetelecom.com/telecom/incumbent-telco-cable-lobbies-aca-ntca-ustelecom-line-up-to-defend-fcc-s-net-neutrality.

75 Ankit Oberoi, 5 Reasons Visitors Leave Your Website, Website Magazine (2014), https://www.websitemagazine.com/blog/5-reasons-visitors-leave-your-website.

76 illgiveyoubadadvice, The end of Net Neutrality - What it means, Imgur (2017),


Lee, creator of the World Wide Web and Director of the World Wide Web Consortium, states, “[i]f US net neutrality rules are repealed, future innovators will have to first negotiate with each ISP to get their new product onto an Internet package. That means no more permissionless space for innovation. ISPs will have the power to decide which websites you can access and at what speed each will load. In other words, they’ll be able to decide which companies succeed online, which voices are heard — and which are silenced.”77

These companies and content providers are also concerned that broadband ISPs who also offer content will give themselves preferential speed. For example, Verizon owns AOL and Yahoo, and has incentives to prioritize traffic to and from those sites over others.78 Additionally, AT&T is attempting to acquire Time Warner, which would include DirectTV and CNN.79

1. The States Weigh-in

States like New York are developing their own Net Neutrality laws, in response to the FCC’s repeal.80 State legislators in at least 15 more states, across the country, have introduced bills that they hope will ensure an “open and equal internet.”81 States like New Jersey and Montana are taking their

https://imgur.com/gallery/zfxwB. 77 Tim Berners-Lee, Act now to save the internet as we know it, Medium (2017),

https://medium.com/@timberners_lee/act-now-to-save-the-internet-as-we-know-it-ccf47ce8b39f.

78 Acquisitions, Crunchbase, https://www.crunchbase.com/search/acquisitions/field/organizations/num_acquisitions/verizon.

79 Diane Bartz & David Shepardson, U.S. sues to stop AT&T buying Time Warner, says would hike rates, Reuters (2017), https://www.reuters.com/article/us-time-warner-m-a-at-t/u-s-sues-to-stop-att-buying-time-warner-says-would-hike-rates-idUSKBN1DK2HN.

80 Associated Press, NY decrees net neutrality for web firms with state contracts, The Wall Street Journal (2018), https://www.wsj.com/articles/APb6787f08ba244d6bad9b99e1f24f9957?mod=searchresults&page=1&pos=10.

81 Jenni Bergal, Net Neutrality Fight Shifts To The States, The Huffington Post (2018), https://www.huffingtonpost.com/entry/net-neutrality-fight-shifts-to-the-states_us_5a68ab8de4b0778013de4e3c. (“Legislators in at least 15 states, from California to Rhode Island, have introduced bills that would create state net neutrality laws or use other approaches to require that internet service providers follow net neutrality requirements in


commitment a step further by only contracting with internet providers who observe net neutrality.82

For example: Rep. Norma Smith, 10th District of Washington state, has proposed a bill that would prohibit Internet service providers from blocking or slowing down traffic or offering paid fast lanes.83 Smith has said, “[i]n our state Legislature, we have bipartisan support for protecting net neutrality.”84 Smith is looking out for her constituents. “Like those in many rural areas, they may not have a choice about internet providers, and they are quite concerned,” Smith said. “Many are working from home or are engaged in the economy online. We want people in rural communities to participate fully, and the concern is that they would not be able to in the future if they don’t have the acceptable internet speeds to do that.”

Twenty-one states and the District of Columbia have brought suit to overturn the repeal of the 2015 Open Internet Order.85 “‘Allowing powerful special interests to act as the Internet's gatekeepers harms consumers, innovation, and small businesses,’ [Washington State Attorney General Bob] Ferguson said. ‘We believe the FCC acted unlawfully when it gutted net neutrality, and I look forward to holding the FCC accountable to the rule of law.’ The suit is being led by New York Attorney General Eric Schneiderman.”86

some way to ensure an open and equal internet.”) 82 Associated Press, NJ to contract only with firms following net neutrality, The Wall

Street Journal (2018), https://www.wsj.com/articles/AP5baddd16485545cda40e26bc5a1af4ae?mod=searchresults&page=1&pos=2;

Jenni Bergal, Net Neutrality Fight Shifts To The States, The Huffington Post (2018), https://www.huffingtonpost.com/entry/net-neutrality-fight-shifts-to-the-states_us_5a68ab8de4b0778013de4e3c. (“And just this week, Montana Democratic Gov. Steve Bullock was the first governor to mandate that internet service providers that sign state contracts follow net neutrality standards.” )

83 HB 2284 - 2017-18, Washington State Legislature (2018), http://apps2.leg.wa.gov/billsummary?BillNumber=2284&Year=2017&BillNumber=2284.


85 Id. (“Last week, nearly two dozen state attorneys general, all of them Democrats, filed a lawsuit to block the FCC’s rollback of net neutrality.”);

86 Jon Brodkin, 21 states sue FCC to restore net neutrality rules, Ars Technica (2018), https://arstechnica.com/tech-policy/2018/01/21-states-sue-fcc-to-restore-net-neutrality-rules/.


Surprisingly, in late January 2018, AT&T called for Congress to pass a net neutrality law.87 It wants a legislative solution to promote clarity, Comcast has also spoken up in support of a federal net neutrality regime that isn’t based on Title II of the Communications Act.88 A federal statute would also combat uncertainty, so that broadband Internet service providers aren’t forced to anticipate the flip-flopping from the FCC changing their regulation with each new administration.

III: WHY THIS ALL ISN’T A BIG DEAL

Yes, there are some concerns. But are they deserving of the hysteria that the public has been whipped up into?

A. Why the Hype?

Why are all these interested parties are buying into the whirlwind of fear? There are two groups to blame: Internet users and the media.

How bad was it? - Pretty bad. On the day of the 2017 FCC vote, an anonymous bomb threat caused the meeting room to be evacuated.89 Officials received a phone call saying that two bombs were in the building. The meeting resumed after bomb-sniffing dogs were brought in to perform a sweep of the building.90 Additionally, the hacking group “Anonymous” threatened to release FCC staff’s personal information, including home addresses, social security numbers, and their “darkest secrets” should they vote in favor of the repeal.91

87 Larry Thaler, A Twisted Look at Net Neutrality, TvTechnology (2018), https://www.tvtechnology.com/opinions/a-twisted-look-at-net-neutrality#.WnYyGbIvHTk.gmail.

88 David Goldman, AT&T wants Congress to pass a net neutrality law, CNNMoney (2018), http://money.cnn.com/2018/01/24/technology/business/att-net-neutrality/index.html. (“[AT&T] wants Congress to establish an "Internet Bill of Rights" that guarantees net neutrality, an open internet, and privacy protection for customers”)

89 Brian Fung & Hamza Shaban, 5 crazy things that happened as the FCC voted to undo its net neutrality rules, The Washington Post (2017), https://www.washingtonpost.com/news/the-switch/wp/2017/12/15/5-crazy-things-that-happened-as-the-fcc-voted-to-undo-its-net-neutrality-rules/?noredirect=on&utm_term=.9a8214da4017.

90 Id. 91 Id.


1. The Media

There is an overwhelming amount of articles and information on net neutrality. Since the concept’s inception in 2003, it seems that everyone has had something to say about net neutrality. News outlets from both the left and right of the political spectrum have interviewed experts, produced videos, and published articles on net neutrality. The media really was doing what it does best: stirring the pot. Where the more liberal outlets, like CNN, tended to support Net Neutrality, the more conservative outlets, like Fox, leaned away from net neutrality.92 These outlets were joined by more unexpected sources, such as the Smithsonian Magazine, who entered the fray as a more neutral party.93 Even Disney’s CEO has made a statement, commenting that he isn’t concerned about any impact that net neutrality might have on Disney’s ability to provide content.94

John Oliver, host of Last Week Tonight, has been a champion for net neutrality for the past five years. On June 1, 2014, prior to the passing of the 2015 Open Internet Order, Oliver hosted a segment on his show, explaining net neutrality and sending the debate into viral status. The FCC had been asking for comments on the proposed order, so Oliver urged his viewers to comment and the volume of responses crashed the FCC’s website.95 Almost three years after his first segment on net neutrality, on May 7, 2017, Oliver revisited the debate, encouraging viewers to defend the rules by once again submitting comments to the FCC. Oliver created a shortcut URL to the hard-to-find FCC comment page, www.gofccyourself.com, to ensure that viewers

92 Seth Fiegerman, Trump's FCC votes to repeal net neutrality, CNNMoney (2017), http://money.cnn.com/2017/12/14/technology/fcc-net-neutrality-vote/index.html;

Jesse Hathaway & Justin Haskins, Ending net neutrality will save the internet, not destroy it, Fox News (2017), http://www.foxnews.com/opinion/2017/12/16/ending-net-neutrality-will-save-internet-not-destroy-it.html.

93 Julissa Treviño, Five Things to Know About Net Neutrality, Smithsonian.com (2017), https://www.smithsonianmag.com/smart-news/five-things-know-about-net-neutrality-180967317/?utm_source=facebook.com&utm_medium=socialmedia.

94 Julia Alexander, 'Net neutrality has never been an issue for us,' says Disney CEO, Polygon (2017), https://www.polygon.com/2017/12/14/16778756/net-neutrality-disney-bob-iger-statement.

95 Marvin Ammori, John Oliver's Hilarious Net Neutrality Piece Speaks the Truth and Nothing But, Slate Magazine (2014), http://www.slate.com/articles/technology/future_tense/2014/06/john_oliver_s_net_neutrality_segment_speaks_the_truth.html.


could easily be heard. Again, the large volume of responses crashed the agency's comment filing system.96

2. The Internet Users

The media has been doing its part, on both sides of the debate, to stir the pot. But the media has to be accountable in the public’s interest.97 A much bigger problem are the Internet users doing what they do best: misinformation and miscommunication.

Prior to the passing of both the 2015 Open Internet Order and the 2017 Restoring Internet Freedom Order, There were many Internet-wide initiatives to support net neutrality. Many corporations and social media sites participated in both the September 10, 2014 Internet Slowdown Day and the July 12, 2017 Day of Action. Facebook, Google, Amazon, the ACLU, Netflix, and many others all participated in the Day of Action, each providing information on their websites protesting the repeal of net neutrality, some even shut down their site in support of the initiative.98

The infamous hacker group, Anonymous, also voiced its opinion of net neutrality. On December 5, 2017, the group released a video on YouTube titled “ANONYMOUS - OPERATION FREE NET - 2018.” The description for this video stated, “The new Chairman of the FCC, Ajit Pai, a former Verizon lawyer, is planning to kill net neutrality protections that prevent ISPs from slowing down or censoring websites. If they succeed, the Internet will never be the same.”99

The group’s comments then escalated on the day of the vote in a series of

96 Melissah Yang, John Oliver tackles net neutrality again and encourages viewers to 'go FCC yourself', CNNMoney (2017), http://money.cnn.com/2017/05/08/media/john-oliver-net-neutrality/index.html.

97 Ratnesh Dwivedi, Public Accountability and Media : Its Success and Failure in Performing The Role as a Force for Public Accountability, bepress (2011), https://works.bepress.com/ratnesh_dwivedi/2/.

98 Colin Lecher, Here's how the internet's net neutrality day of action unfolded, The Verge (2017), https://www.theverge.com/2017/7/12/15958030/net-neutrality-day-of-action-internet-companies-list.

99 ANONYMOUS PRIME, ANONYMOUS - OPERATION FREE NET - 2018, YouTube (Dec. 5, 2017), https://www.youtube.com/watch?v=0afjs4-7Eio.


tweeted threats. The first, at 1:18 PM on December 14th, 2017, read100:

Later that same day, they posted another tweet101:

The group even threatened a 48 hour cyber attack on the FCC’s website.102 The website crashed, however, Anonymous never officially

100 Anonymous (@LatestAnonNews), Twitter (Dec. 14, 2017, 1:18 PM), https://twitter.com/LatestAnonNews/status/941371862868807680.

101 Anonymous (@LatestAnonNews), Twitter (Dec. 14, 2017, 1:34 PM), https://twitter.com/LatestAnonNews/status/941375846870388736.

102 Lima Charlie, Hacktivist group 'Anonymous' threatens to hack FCC following Net Neutrality reversal, Lima Charlie News (2017),


claimed credit.103

The videos created by the media that have been posted online to popular sites such as YouTube did not have to work hard to get several thousand or even millions of views. John Oliver’s first net neutrality segment is available on YouTube and has received a staggering 14M views.104 Others took the Anonymous route, using eye grabbing titles like: “Our Internet Will Be Destroyed In The Coming Weeks & No One’s Talking About It,” by Redacted Tonight, or “The Beginning of the End of Net Neutrality is Officially Here,” by The Humanist Report.105

Facebook users too have been creating and sharing countless posts advocating for both sides of the net neutrality debate. A pro net neutrality post by Facebook’s founder, Mark Zuckerberg, from July 12, 2017, has received over 6,400 shares.106 Further, celebrities and politicians alike have been posting on the issue.107 Their posts are consistently vague and mostly

https://limacharlienews.com/cyber/hacktivist-group-anonymous-threatens-fcc-net-neutrality/

103 Id.; Brian Fung & Hamza Shaban, 5 crazy things that happened as the FCC voted to undo

its net neutrality rules, The Washington Post (2017), https://www.washingtonpost.com/news/the-switch/wp/2017/12/15/5-crazy-things-that-happened-as-the-fcc-voted-to-undo-its-net-neutrality-rules/?noredirect=on&utm_term=.9a8214da4017.

104 LastWeekTonight, Net Neutrality: Last Week Tonight with John Oliver (HBO), YouTube (Jun. 1, 2014), https://www.youtube.com/watch?v=fpbOEoRrHyU.

105 Redacted Tonight, Our Internet Will Be Destroyed In The Coming Weeks & No One’s Talking About It, YouTube (May 13, 2017), https://www.youtube.com/watch?v=YBkMRDbgAY4;

The Humanist Report, The Beginning of the End of Net Neutrality is Officially Here, YouTube (Apr. 23, 2018), https://www.youtube.com/watch?v=Z1V1TPW6xKY.

106 Mark Zuckerberg, Facebook (July 12, 2017), https://www.facebook.com/zuck/posts/10103878724831141.

107 Vanessa Hudgens, Facebook (Feb. 1, 2018), https://www.facebook.com/VanessaHudgens/posts/10156060157738607. (pro net neutrality – provided a link to: Battle for the Net, https://www.battleforthenet.com/);

Congressman John Garamendi, Facebook (July 20, 2017), https://www.facebook.com/repgaramendi/posts/10155011040611747. (pro net neutrality – provided a link to: Mike Snider, Record 9 million comments flood FCC on net neutrality, USA Today (2017), https://www.usatoday.com/story/tech/news/2017/07/19/record-9-million-comments-flood-fcc-net-neutrality/488042001/);

Congressman Rick Larsen, Facebook (July 12, 2017),


consist of links to articles, the FCC’s website, etc. These posts do more to stir the pot than to really inform, which is dangerous when combined with the lack of fact checking prior to March 2018,108 and the low likelihood that viewers will actually click through to the articles.109

President Trump and his appointed FCC Chairman, Ajit Pai, have also been using the Internet as a tool to support the repeal of net neutrality.110 Trump is well known for his command and strategic utilization of the internet.111 Ever since a 2014 tweet calling the 2015 Open Internet Order a “top down power grab,” Trump has been a constant champion against net neutrality.112

https://www.facebook.com/RepRickLarsen/posts/1401565566545978. (pro net neutrality – provided a link to: Rachel Lerman, Tech companies rally to protest rollback of net neutrality, The Seattle Times (2017), https://www.seattletimes.com/business/technology/tech-companies-rally-to-protest-rollback-of-net-neutrality/);US Senator Ted Cruz - Anti NN - November 10, 2014 (Pre 2015 OIO) - https://www.facebook.com/tedcruzpage/posts/10152839355922464

United States Senator Mike Lee, Facebook (April 12, 2016), https://www.facebook.com/senatormikelee/posts/1126317040733321. (“That's why I introduced, along with several of my colleagues, the Restoring Internet Freedom Act” – provided a link to: Sen. Lee Introduces The Restoring Internet Freedom Act, Lee Senate Gov (2016), https://www.lee.senate.gov/public/index.cfm/2016/2/sen-lee-introduces-the-restoring-internet-freedom-act).

108 Josh Constine, Facebook starts fact checking photos/videos, blocks millions of fake accounts per day, TechCrunch (2018), https://techcrunch.com/2018/03/29/facebook-fact-check-photos/.

109 Ayaz Nanji, Facebook Advertising Benchmarks for 18 Industries, MarketingProfs (2017), https://www.marketingprofs.com/charts/2017/31801/facebook-advertising-benchmarks-for-18-industries-infographic. (“The average clickthrough rate (CTR) for Facebook ads across all industries is 0.90%”)

110 Nathaniel Mott, A Donald Trump Administration Could Kill Net Neutrality, Inverse (2016), https://www.inverse.com/article/23533-trump-could-kill-net-neutrality.

111 Everything President Trump has tweeted (and what it was about), Los Angeles Times (2018), http://www.latimes.com/politics/la-pol-updates-everything-president-trump-has-tweeted-and-what-it-was-about-2017-htmlstory.html. (“His tweets have the power to shape international relations, send stock prices up — or down — and galvanize the American public.”)

112 Donald J. Trump (@realDonaldTrump), Twitter (Nov. 12, 2014, 12:58 PM), https://twitter.com/realDonaldTrump/status/532608358508167168.


FCC Chairman Ajit Pai has also used the internet as a weapon to fight net neutrality. In his many attempts to rally support for his 2017 Restoring Internet Freedom Order, Pai has issued remarks and articles that have called net neutrality a “heavy-handed” and “unnecessary” regulation.113

In one notable video, Pai appeals to the public by listing “7 things you can still do on the internet after net neutrality.”114 In this video, Pai dresses up in Santa Claus and Jedi costumes, twirls a fidget spinner, and pours hot sauce on junk food.115 Pai’s efforts have been met with an intense level of hatred by those who support net neutrality. Mark Hamill, who plays the iconic jedi, Luke Skywalker, responded to Pai’s video, claiming that Pai is “profoundly unworthy 2 wield a lightsaber-A Jedi acts selflessly for the common man-NOT lie 2 enrich giant corporations.”116 Pai has been smeared

113 David Shepardson, FCC chief plans to ditch U.S. 'net neutrality' rules, Reuters (2017), https://www.reuters.com/article/us-usa-internet-exclusive/fcc-chief-plans-to-ditch-u-s-net-neutrality-rules-idUSKBN1DL21A;

FCC Chairman Pai Remarks on Restoring Internet Freedom, Federal Communications Commission (2017), https://www.fcc.gov/document/fcc-chairman-pai-remarks-restoring-internet-freedom;

Myth vs. Fact: Chairman Pai's Restoring Internet Freedom Order, Federal Communications Commission (2017), https://www.fcc.gov/document/myth-vs-fact-chairman-pais-restoring-internet-freedom-order.

114 Daily Caller, PSA from Chairman of the FCC Ajit Pai, YouTube (Dec. 13, 2017), https://www.youtube.com/watch?v=LFhT6H6pRWg.

115 Brian Fung, The FCC just voted to repeal its net neutrality rules, in a sweeping act of deregulation, The Washington Post (2017), https://www.washingtonpost.com/news/the-switch/wp/2017/12/14/the-fcc-is-expected-to-repeal-its-net-neutrality-rules-today-in-a-sweeping-act-of-deregulation/?utm_term=.f8b612d6bba4.

116 Mark Hamill (@HamillHimself), Twitter (Dec. 16, 2017, 4:53 AM),


and villainized in a way that is surprisingly effective, and can only be accomplished in the anonymous forum of the internet: through memes.117

B. There is Still a Safety Net

The digital world does need to be regulated, the broadband providers do have to have some regulation that keeps them from exploiting their customers. But does that regulation need to be in the form of the FCC wielding Title II of the Communications Act of 1934?

1. The Federal Trade Commission

The power to regulate broadband Internet service providers will simply revert to the Federal Trade Commission (FTC), who policed this for two decades before the FCC reclassified broadband service as a “common carrier” in 2015.118 Federal Trade Commission Acting Chairman Maureen K. Ohlhausen issued a response to the December 14, 2017 vote, stating that “[t]he FTC is ready to resume its role as the cop on the broadband beat, where it has vigorously protected the privacy and security of consumer data and challenged broadband providers who failed to live up to their promises to consumers.”119 Ohlhausen went on to say, “[t]he FCC’s action today restored

https://twitter.com/HamillHimself/status/941984701085925376. 117 Larry Downes, Why Is The Media Smearing New FCC Chair Ajit Pai As The Enemy

Of Net Neutrality?, Forbes (2017), https://www.forbes.com/sites/larrydownes/2017/01/24/why-is-the-media-smearing-new-fcc-chair-ajit-pai-as-the-enemy-of-net-neutrality/#329aec17438e;

Ajit pai memes • r/memes, reddit, https://www.reddit.com/r/memes/comments/7jwsew/ajit_pai_memes/.

118 Devin Coldewey, Commission Impossible, part two: How enemies gathered around net neutrality, TechCrunch (2017), https://techcrunch.com/2017/12/13/commission-impossible-part-two-how-enemies-gathered-around-net-neutrality/;

Michael Santorelli, After Net Neutrality: The FTC Is The Sheriff Of Tech Again. Is It Up To The Task?, Forbes (2017), https://www.forbes.com/sites/washingtonbytes/2017/12/15/the-game-is-on-the-ftc-tech-regulation-post-net-neutrality/#3b50487575a4. (“Once the repeal order goes into effect (presumably in early 2018), primary regulatory oversight of broadband ISPs will return to the Federal Trade Commission.”)

119 Statement from Acting FTC Chairman Maureen K. Ohlhausen on the FCC's Approval of the Restoring Internet Freedom Order, Federal Trade Commission (2017), https://www.ftc.gov/news-events/press-releases/2017/12/statement-acting-ftc-chairman-maureen-k-ohlhausen-fccs-approval.


the FTC’s ability to protect consumers and competition throughout the Internet ecosystem.”120

2. The FTC’s Authority

Prior to the passing of 2015 Open Order, and now that the 2015 Order has been repealed, regulators must use a more indirect method of regulating broadband providers. The issue, as with most areas of law, lies in properly framing the issue. Instead of directly punishing a broadband Internet service provider for blocking or throttling service, the FTC must bring suit against them for violating protections against antitrust, unfair competition, or deceptive acts.121

Robert McDowell, a former Republican FCC commissioner from 2006 to 2013, commented on the 2017 Restoring Internet Freedom Order: “the FCC is restoring the state of the law as it was before the 2015 change. Consumers were well-protected then by three powerful federal laws: the Federal Trade Commission Act, the Sherman Act, and the Clayton Act, plus other laws too. They will be well-protected again after Thursday’s FCC vote.”122

The Sherman Antitrust Act of 1890 “allowed certain business activities that federal government regulators deem to be competitive, and recommended the federal government to investigate and pursue” monopolies, cartels, and trusts.123 The Clayton Antitrust Act of 1914 expands the list of prohibited activities from the Sherman Act “such as price discrimination, price fixing, and unfair business practices.”124 The Federal Trade Commission Act of 1914 outlaws unfair methods of competition and unfair

120 Id. 121 https://apps.fcc.gov/edocs_public/attachmatch/DOC-348261A1.pdf (“Restores

broadband consumer protection authority to the Federal Trade Commission (FTC), enabling it to apply its extensive expertise to provide uniform online protections against unfair, deceptive, and anticompetitive practices.”)

122 Net Neutrality, For and Against, The Wall Street Journal (2017), https://www.wsj.com/articles/net-neutrality-for-and-against-1513195805?mod=searchresults&page=4&pos=5.

123 Sherman Antitrust Act, Wikipedia (2018), https://en.wikipedia.org/wiki/Sherman_Antitrust_Act.

124 Clayton Antitrust Act, Investopedia (2018), https://www.investopedia.com/terms/c/clayton-antitrust-act.asp.


or deceptive acts or practices that affect commerce.125 With these Acts, the FTC has broad power to police unfair business conduct.126

In a world without net neutrality, the FTC possesses the power to regulate broadband Internet service providers. This isn’t a novel concept. People were talking about it before the December 14, 2017 vote and continue to talk about it now.127 But it got lost in the frenzy.

So, to answer the question: Is the hype behind these fears warranted? No. The repeal of the 2015 Open Internet Order does not throw away the consumer’s only shield. The broadband Internet service providers claim that they aren't going to block or throttle their service. But even if they do, the FTC has the power to step in.

3. How Effective is the FTC?

There is some opposition to “the FCC’s move to repeal many of its net neutrality rules. They doubt that the FTC will be able to police the internet because its authority, while affirmed by the courts, will still be much more limited than the FCC’s oversight.”128

A competent safety net still exists when the more direct FCC regulation is repealed. The FTC could, and did police broadband providers before net neutrality. The case of Fed. Trade Commn. v. AT & T Mobility LLC is a recent example where the FTC used its authority, pre-net neutrality, to prevent a

125 Federal Trade Commission Act, Federal Trade Commission (2018), https://www.ftc.gov/enforcement/statutes/federal-trade-commission-act 126 Fed. Trade Commn. v. AT&T Mobility LLC, 883 F.3d 848, 854 (9th Cir. 2018); Michael Santorelli, After Net Neutrality: The FTC Is The Sheriff Of Tech Again. Is It Up

To The Task?, Forbes (2017), https://www.forbes.com/sites/washingtonbytes/2017/12/15/the-game-is-on-the-ftc-tech-regulation-post-net-neutrality/#3b50487575a4. (““The FTC has broad authority to police conduct that undermines competition (via enforcement of antitrust law) and harms consumers (via enforcement of laws around unfair and deceptive practices). The agency’s jurisdiction is virtually unbounded, meaning that it could act – and hopefully will act – to address harms in any part of the tech ecosystem.”)

127 Id. 128 Ted Johnson, In Latest Twist in Net Neutrality Battle, Court Rules FTC Can Regulate

Internet Providers, Variety (2018), http://variety.com/2018/politics/news/federal-trade-commission-net-neutrality-1202710635/.


broadband service provider from throttling service.129 The FTC sued AT&T in 2014, prior to the 2015 Open Internet Order. The FTC brought this suit under section 5 of the FTC Act, 15 U.S.C. § 45(a) which states:

(a) Declaration of unlawfulness; power to prohibit unfair practices; inapplicability to foreign trade

(1) Unfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce, are hereby declared unlawful.

(2) The Commission is hereby empowered and directed to prevent ... corporations, except ... common carriers subject to the Acts to regulate commerce, ... from using unfair methods of competition in or affecting commerce and unfair or deceptive acts or practices in or affecting commerce.130

The FTC found that AT&T was reducing data speeds up to 90% (throttling) for millions of unlimited data plan holders. AT&T appealed, challenging the FTC’s authority to regulate it because the FTC does not have authority to regulate common carriers. AT&T howelost its challenge; the appeals court held that the immunity from FTC regulation applies "only to the extent that a common carrier is engaging in common-carrier services.131 Prior to the 2015 Open Internet Order, and again, now that the 2015 Order has been repealed, broadband service is not classified as a common carrier service.132

129 Fed. Trade Commn. v. AT & T Mobility LLC, 835 F.3d 993, 995 (9th Cir. 2016), reh'g en banc granted sub nom. Fed. Trade Commn. v. AT&T Mobility LLC, 864 F.3d 995 (9th Cir. 2017), and on reh'g en banc sub nom. Fed. Trade Commn. v. AT&T Mobility LLC, 883 F.3d 848 (9th Cir. 2018). (“The FTC filed a complaint against AT & T under section 5 of the FTC Act, 15 U.S.C. § 45(a), taking issue with the adequacy of AT & T's disclosures regarding its data throttling program. The central issue before us is whether AT & T is covered by section 5, which exempts, among others, “common carriers subject to the Acts to regulate commerce.” We conclude that AT & T is excluded from the coverage of section 5, and that the FTC's claims cannot be maintained.”)

130 Federal Trade Commission Act, 15 U.S.C.A. § 45 (1914). 131 Fed. Trade Commn. v. AT&T Mobility LLC, 883 F.3d 848, 850 (9th Cir. 2018) 132 Brent Kendall, FTC's Data-Speed Lawsuit Against AT&T Can Proceed, Appeals

Court Says, The Wall Street Journal (2018), https://www.wsj.com/articles/ftcs-data-speed-lawsuit-against-at-t-can-proceed-appeals-court-says-1519669863;

Jon Brodkin, AT&T loses years-long quest to cripple FTC authority over telecoms, Ars Technica (2018), https://arstechnica.com/tech-policy/2018/02/att-loses-years-long-quest-to-cripple-ftc-authority-over-telecoms/.


4. FTC-FCC Cooperation

The FTC’s Restoring Internet Freedom FCC-FTC Memorandum of Understanding outlines a plan of action where the FTC and FCC work together to utilize each agency’s “legal, technical, and investigative expertise and experience” “for the purpose of facilitating their joint and common goals, obligations, and responsibilities to protect consumers and the public interest.”133

The success of this cooperation agreement requires both commissions to bring something to the table. The FCC requires transparency from the broadband Internet service providers, and the FTC prohibits unfair or deceptive practices.

The FCC established new transparency rules in the 2017 Restoring Internet Freedom Order, that are based off the 2010 Transparency Rule. These rules provide additional tools to help ensure that consumers get what they expect from their broadband providers, who will be required to disclose their traffic management practices.134 The FTC has been directed by Congress “to, among other things, prevent unfair methods of competition and unfair or deceptive acts or practices in or affecting commerce under Section 5 of the Federal Trade Commission Act, 15 U.S.C. § 45, and has charged the FTC with enforcing a number of other specific rules and statutes.”135 This cooperation is promising because the FCC’s transparency rules will prevent broadband service providers from hiding their unfair practices behind secrecy, and allow the FTC to better police for deceptive acts.

133 Restoring Internet Freedom: FCC-FTC Memorandum of Understanding, Federal Trade Commission, https://www.ftc.gov/policy/cooperation-agreements/restoring-internet-freedom-fcc-ftc-memorandum-understanding. 134 Statement from Acting FTC Chairman Maureen K. Ohlhausen on the FCC's Approval

of the Restoring Internet Freedom Order, Federal Trade Commission (2017), https://www.ftc.gov/news-events/press-releases/2017/12/statement-acting-ftc-chairman-maureen-k-ohlhausen-fccs-approval.

135 Restoring Internet Freedom: FCC-FTC Memorandum of Understanding, Federal Trade Commission, https://www.ftc.gov/policy/cooperation-agreements/restoring-internet-freedom-fcc-ftc-memorandum-understanding.


CONCLUSION

The fight for net neutrality persisted for years until the Obama-era Federal Communications Commission (FCC) finally won the ability to regulate broadband Internet service providers. Through the reclassification of broadband as a common carrier under Title II of the Communications Act of 1934, the FCC had the authority to prohibit broadband Internet service providers from throttling, blocking, or prioritizing traffic based on source or destination. The Trump-era FCC effectively repealed net neutrality with the passing of the 2016 Returning Internet Freedom Order.

Those against net neutrality fear an over regulated internet will stifle innovation and effect the net infrastructure’s ability to grow. Those who support net neutrality fear unregulated broadband Internet service providers will take advantage of this “light touch” framework at the expense of the consumers and content providers of the internet.

These fears are valid, but are the broadband Internet service providers as unregulated as either side believes? No. Post net neutrality, the power to regulate broadband Internet service providers simply reverts to the Federal Trade Commission (FTC). The FTC successfully policed the broadband Internet service providers for unfair or deceptive acts for twenty years before the FCC ousted that power for two years, and the FTC is ready to continue doing so, with full support of the FCC.

Documents

THE BATTLE OVER NET NEUTRALITY - Chicago-Kent Blogsblogs.kentlaw.iit.edu/perrittseminar/files/2017/12/...2 The Battle Over Net Neutrality [11-May-18 INTRODUCTION The dust is settling