In the wake of the FCC’s decision to repeal Title II without offering a replacement to protect the concept of net neutrality, social media and media outlets responded with widespread concern and anger. This article attempts to assess what the actual consequences of this historic repeal will be and to explain the most important parts of the Title II legislation.
The Federal Communication Commission’s late debate on the repeal of ‘Net Neutrality’ must be understood as more than simply black and white. The laws that maintain Net Neutrality, often referred to as “Title II”, are remarkably tricky, and their exact wording on the control to be placed on internet providers is, equally, rather woolly. Defenders of Net Neutrality legislation claim that Title II necessarily protects freedom of information, for the title chiefly focusses on maintaining a ‘free and open internet’, but this is strawman-ing the problem. The FCC’s repeal of Title II, that is, was not carried out to limit the communicative freedom of the American people but quite the opposite. Both sides of the argument make the claim that their opponents want to restrict free markets and consumer choice, and both sides take their legitimacy from the complexity of the original Title II decision.
The current debate on the righteousness of Net Neutrality circulates three particular points outlined in section II of the Title II legislation. Much of the outrage about the new legislation, in fact, has loosely cited three points are defined as ‘Blocking’, ‘Throttling’, and ‘Paid Prioritization’. Where Nick Frisch’s recent New York Times op-ed stated that “abolishing net neutrality gives American corporations the means, motive and opportunity to become accomplices in selling out our freedom of speech,” the reader must note that this kind of language takes the three concepts above to their limits. It assumes that by not obeying the ban against “Blocking, Throttling, and Paid Prioritization” [II.A.1] detailed in Title II, the FCC is allowing, or even advocating for these things.
The legislation regarding ‘Paid Prioritization’ ought to be particularly interesting for people like Frisch in that it does little to prevent companies from using loopholes to ensure that their product is benefited by the way that they provide internet access. Title II states:
“We ban arrangements in which the broadband service provider accepts consideration (monetary or otherwise) from a third party to manage the network in a manner that benefits particular content, applications, services, or devices. We also ban arrangements where a provider manages its network in a manner that favors the content, applications, services or devices of an affiliated entity.” [III.C.1.c]
And yet, for multinational companies that deal in phone-number-money, the above wording is laughably lax. To the extent that it even fails to ban a provider’s favoring of their own content, Title II fails to ban what could be viewed as ‘personal prioritization’. Net Neutrality laws thus forbid the corporate favoring of one’s friends for monetary gain, but do not go far enough to stop providers’ abilities to favor themselves.
One must note that this point does not advocate for the repeal of Title II. Despite the fact that the laws instituted in 2015 are flawed, these are effectively the only internet-specific laws in place that attempt to keep the internet free and open. The problem with just doing away with Title II all-together is that there is—by all accounts—nothing else in place to curb the appetites of large broadband companies. Looking back to 2013 when Net Neutrality laws as-we-know-them didn’t exist, one can see that effect that this had on businesses and consumers. Namely, whilst quality in internet speed rose, the price of Internet Service Provider [ISP] packages essentially remained the same, even when allowing for inflation. But, crucially, Time Warner and Comcast, the two largest ISP’s in America, showed considerably more growth and movement towards monopoly than the rest of the market. Demonstrably, they affirmed people’s fears about the potential of free markets to allow corporate dominance on behalf of the few.
On page 7 of the Federal Court Appeal document, it is stated that paid prioritization is legal as long as it engages in “just and reasonable” rates. This notion most jeopardizes the freedom of the market which Title II sceptics cite. To understand this, we must create a binary in which pro-Title II implies that one prioritizes freedom of information and anti-Title II implies that one prioritizes freedom of commerce. The fact that the wording of the Appeal cited above necessitates the justness and reason of companies, therefore, contradicts the very tenet that this Appeal is in favor of. In going against Net Neutrality, therefore, politicians must give to the market an absolute freedom; without restraint; without proviso; without doubt. To allow the free market to flourish, that market must be entirely free.
Referring to section II, subsection A, paragraph 23 of the Title II legislation, the reader should note the claim that one of the most significant and concrete steps of this law was to demand transparency on the part of ISP’s. No longer were companies allowed to be discreet about the services they provided but now had to give detailed, factual accounts of their practices. This is important both for a free market and for an open exchange of information, meaning that a loss of Title II laws will inevitably lead the country to suffer at the hands of decreased transparency.
Aside from this fact, it is clear that Title II is not sufficient legislation to keep data exchange free, nor is it effective enough in compelling Republicans to follow through on a conservative reading of the constitution. This is to say that the First Amendment would always unequivocally imply that American citizens have an equal right to equal information. A prioritization of the market, therefore, creates tension with this claim. When Title II was first brought to the FCC, it was passed primarily because of a mix of excitement for a free internet and fear of a strangled internet. Similarly, the pro-Net-Neutrality camp that became so outraged this November and December staked their bets on the same concerns, with Commissioner Jessica Rosenworsel making these very points in her LA Times piece.
The reasoning behind different people’s views on Net Neutrality can be roughly divided into these two camps, with a potential to divide further as ‘democrat-republican’, or ‘liberal-conservative’. This is somewhat fruitful, but what is more fruitful is to make predictions—though somewhat speculative—which may tell us about the internet’s future, and what part America has to play in it.
First, a continued move away from Government ability to enforce trade limits on ISPs will lead to an internet that is dependent on the private sector. Evidently, by permitting a genuinely free market of ISPs, the government concedes to those same ISPs ability to govern themselves. Such a move would mean the end of Net Neutrality as we know it, but not necessarily the end of a free and open internet. Absolutely, information could remain as openly accessible as it was under Title II by the simple enforcement of competition due to a free market. Such a move would warrant increased Government investment in affiliates of ISPs, along with a likely spike in the valuation of current ISP giants. Under a Republican administration, this would fall in line with the expectations of the government—that politicians concern themselves more with the affluence of the private sector than the safety of the public sector.
The election of a Democratic nominee in 2020, however, would signal a move to bring in a revised version of Title II. This legislation would focus on the belief that the Government ought to act as the ultimate arbiter of information—which is in itself the core tenet of Title II and Net Neutrality. As such, it would comply with the position put forward by Frisch and Rosenworsel that private sector ‘self-regulation’ is unsafe. Allowing the government to monitor the flow of information in the name of freedom, however, is a risky move for that freedom itself. Recalling that Title II treats the internet as a public utility, a revision of Title II would similarly push for the public [read: state] arbitration of information. The possible result of this would be the transmission of the internet to becoming a Government-owned utility.
In both of the above scenarios, the internet will remain “free and open” for less than ten years, to be taken over by the Government through legislative (pro-Net-Neutrality) or economic (anti-Net-Neutrality) means. As final as this prediction sounds, it is made in the sceptic mode of not trusting the state or, at the very least, of reading their motivations to be lined by a desire for self-profit and control.