|By Esmeralda Swartz||
|May 6, 2014 11:00 AM EDT||
The net neutrality debate continues to provide plenty of fodder for consumers, businesses, carriers, over the top (OTT) providers and pundits to argue the points of Internet openness, competition (or lack thereof) and blocking and favoring on the part of Internet service providers (ISPs). Much of the discussion tends to end up debating the impact of net neutrality on Internet openness. This is interesting since in the U.S. government has not enacted legislation to actually define and require Internet openness or to specify what level of non-openness is acceptable, if any. So openness is a concept without legal definition or backing, which means that individual opinions vary on what constitutes fettering and what doesn't. And it was attempts by the FCC to fill this gap with the Open Internet Order that triggered the court action on net neutrality.
The net neutrality debate considers two options: either ISPs should have the right to manage Internet traffic preferentially, thus by most definitions fettering that traffic - and in the U.S. the federal high court determined that ISPs could do just that - or governments should have the right to prevent ISPs from managing Internet traffic preferentially, thus clearly fettering the Internet by engaging in regulation of its players. In the EU, Parliament ruled in favor of government intervention.
In the past, the FCC has held the view that regulating the ISPs to prevent fettering is a lesser evil than enabling the ISPs to manage their traffic. The January 2014 federal court decision agreed with the ISPs that the FCC should not regulate ISP activity. Note that this decision is not based on the pros and cons of openness, but on the limits to the authority of the FCC. The court stated, "Our task as a reviewing court is not to assess the wisdom of the Open Internet Order regulations, but rather to determine whether the Commission has demonstrated that the regulations fall within the scope of its statutory grant of authority." I think it is worth highlighting this point because certain over-the-top (OTT) players continue to lobby the FCC to intervene in an area in which the courts have already determined it has no jurisdiction.
Immediately after the ruling, more than 100,000 people signed a petition to the White House, which means that the government has to say something about it at some point. The big hope for the petitioners is that popular pressure will result in reclassification of the Internet as a communications service. In other words, Internet providers become "common carriers" just like phone companies.
Let's consider. The Internet supports access to information, and also provides ubiquitous communications services between businesses and individuals. Given that the Internet has evolved into what it is - a tool that has become part of the way of life and business for just about everyone - it is rather difficult for an innocent observer to think of it as anything other than a communications service, and one that is increasingly essential for the well-being of us all, at least in the life to which we have all become accustomed. If "communications" is important enough to be regulated (to at least some extent) then surely the Internet must be too.
If that seems obvious then the debate is over and everything is fine. But let's not forget that the existing classification (as an information service) didn't come about by accident: it was as a result of persistent lobbying by the same companies who drove us towards the recent decision: the access providers. Any change to this will not go uncontested. And even if the Internet is reclassified, it just moves the argument: what sort of regulation is appropriate? The answer to that question will depend - not unsurprisingly - on who you ask and what that person thinks of ‘net neutrality' and indeed the whole concept of ‘regulation.' The debate will not go away; it will simply change focus. After years of further debate, the result could be that not only the Internet, but also traditional phone services, could become much more lightly regulated.
Whatever the outcome of lobbying and petitioning, nothing will happen fast. The decision is with us and we will have to live with that decision, and therefore, live without net neutrality in the U.S. The theme of my series of blogs has been on the turmoil this could cause and some unexpected impacts. Not only will device manufacturers, edge providers and transport ISPs have to be reckoned with, but the businesses and consumers who pay for Internet access will now have some clout too.
Interested in learning how? Follow us on Twitter to make sure you don't miss Part II.