Net Neutrality and Data Equity

The dismantling of Obama-era regulations.


May 18, 2017

Thursday the Federal Communications Commission (FCC) voted to begin the process of dismantling Obama-era regulations regarding net neutrality. The now Republican-led FCC voted 2-1 to start the 90-day process of rolling back regulations put in place in 2015. With only three of the five seats on the commission filled, the vote was strictly along party lines. The new FCC Chairman Ajit Pai and his fellow Republican Commissioner Michael O’Reilly voted in favor of de-regulation while the lone Democrat, Mignon Clyburn, voted against it.

The fact that this is a concern to many college-age students and millennials was reinforced recently when John Oliver devoted an entire episode of his popular HBO show “Last Week Tonight” to this issue. 

As he did more than two years ago when this issue was first debated, Oliver ended the segment by urging viewers to go to the FCCs comments page and voice their concern. In 2014 so many responded that the FCC site shut down. The response this time was similar. Following the episode more than 150,000 people flooded the site, many using Oliver’s ‘gofccyourself.com’ link. That number is probably an understatement because that evening the FCC was hit by several DDos (distributed denial of service) attacks that delayed access to the comments section.  [http://www.i360gov.com/government-technology-news/2017/may/11/fcc-claims-overnight-ddos-attacks ]

The place of universities and colleges in the history of Internet is well known – the Internet as initially developed was a network between the government and universities. It wasn’t until the late 1980s that commercial use of the Internet began –the World Wide Web was established in the early 1990s and the first ISP’s (Internet Service Providers) just a year or so earlier.

It was another decade before Columbia Law Professor Tim Wu, then at the University of Virginia Law School, coined the term ‘net neutrality’. At its most basic the principle, which some refer to as the “first amendment of the internet,” means that all data should be treated equally. As Wu writes, the political debate over net neutrality “centers on whether it is more ‘neutral’ to let consumers reach all Internet content equally or to let providers [ISP’s] discriminate if they think they'll make more money that way.” [http://www.slate.com/articles/technology/technology/2006/05/why_you_should_care_about_network_neutrality.html ]

As with so many things that seem complicated or esoteric on their face, metaphors regarding net neutrality abound. One of the most popular is Michael Goodwin’s cartoon which equates an ISP to a driveway that connects homes to places on the internet. [http://economixcomix.com/home/net-neutrality/] Without net neutrality the ISP could allow some to travel to their destination faster than others. With the principle of net neutrality ISP’s are not allowed to slow some traffic or to enable those who pay more to go faster. Sticking with the driving theme, imagine the internet is a highway and ISP’s are allowed to set up a fast lane for those who can afford it and a slow lane for the vast majority who cannot.

That is why net neutrality is so important, it is the principle which guards against this type of favoritism and enshrines (or in this case codifies) the notion that all data must be treated equally. Under net neutrality, an ISP like Comcast could not speed up transmission of NBCUniversal shows (which it owns) and slow down rival Disney’s content. Likewise, Verizon could not speed up transmission of data from a provider who is willing to pay more (i.e. well financed or popular commercial sites) or slow down or block transmission from others who are either unwilling or unable (i.e. educational or non-profit sites).

In 2010, the FCC adopted formal rules with respect to net neutrality, passing an order against blocking and unreasonable discrimination, among other things. This order was challenged in court and in 2014 the D.C. Circuit overturned the requirement on the grounds that broadband internet was classified as a Title I ‘information service’ and as a result it could not be regulated as a common carrier. In order to regulate the ISPs, the FCC would have to reclassify them as Title II telecommunications services (i.e. a public utility or common carrier).

After much debate, in 2015 the FCC did just that. The Commission voted not only to reclassify ISPs but also passed the “Open Internet Order” which insured against paid prioritization and throttling (slowing down delivery of data) and contained enhanced transparency or disclosure requirements, among other things. The following June the D.C. Circuit Court ruled in favor of the FCC, affirming its authority to reclassify broadband and upholding the implementation of net neutrality rules.

Now, just a few years later these rules are under attack. In late April Pai, a former Verizon attorney who was named Chair by President Donald Trump just weeks earlier, released a Notice of Proposed Rulemaking (NPRM). The NPRM was the first indication that the Commission intended to move forward with the process of removing the Title II common carrier designation for broadband ISP’s, thus returning regulation to the Federal Trade Commission (FTC), and revisiting the ‘net neutrality’ principles established by the 2015 Open Internet Order. The move was not surprising given both Pai’s public opposition to the 2015 Order, as well as the Trump administration’s broader interest in rolling back almost all Obama era regulations.

As predicted, Thursday’s vote was along party lines. With Pai arguing, as he has in the past, that “These utility-style regulations … were and are like the proverbial sledgehammer being wielded against a flea — yet in this case there was no flea.” While the outnumbered Clyburn expressed her strong opposition noting that, “no economist or technologist [was] consulted during the drafting."  

While net neutrality is a concern to college-aged students it is not and should not be a concern of millennials alone. When net neutrality was first debated and passed more than two years ago, some advocates spoke eloquently about why it should be of concern to those of us who teach and work in higher education as well. Among the most cited reasons is that the loss of net neutrality jeopardizes the core teaching and learning mission of colleges and universities which hinges on open and equitable access to information. In addition, it is not outside the scope of possibility that if paid prioritization was to take place, more entertainment focused and commercial sites would be put on the “fast track,” while educational and other less popular sites might be disadvantaged. Finally, at an economically challenging time for so many in our communities, in the absence of net neutrality institutions and users may end up being forced to pay more for prioritized (or non-prioritized) material.

Despite Thursday’s vote, all is not lost – at least not yet. As Pai noted, we are now at the beginning of a 90-day comment period in which the public is asked to make their voices heard. And many people are doing just that. As of today, more than two million comments have been posted on the FCC’s site [https://www.fcc.gov/ecfs/search/filings?proceedings_name=17-108&sort=date_disseminated,DESC ] Given the potential impact of the decision on all of us in education, it is an important time to make our voices heard.

Jeanne Zaino, Ph.D., is professor of political science at Iona College. You can follow her on twitter @jeannezaino

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