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July marked one full year since net neutrality regulations were repealed. Net neutrality is often defined as “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.” Internet service providers (“ISPs”) are companies that provide internet access to customers, such as AT&T, Verizon, and Comcast. The Federal Communications Commission (“FCC”), the administrative agency charged with regulating communications by wire, radio, television, and cable, first voted to repeal net neutrality regulations in December of 2017. This decision was met with extensive backlash from state attorney generals, public interest groups, and Democratic lawmakers.

Regardless of this response, the FCC pushed forward and officially repealed all net neutrality regulations in July of 2018. FCC chairman, Ajit Pai, has argued that net neutrality limits ISP innovation and compromises the agency’s independence. Widespread speculation has contested that Mr. Pai’s far right political views and favoritism of big corporations is the true motive behind this repeal. However, Mr. Pai and the FCC maintain that consumers are better off without these regulations because ISPs will be able to upgrade and expand their services faster.

Public outcry from Democratic lawmakers and voters tends to disagree with this assertion, mainly due to the vast amount of abuses net neutrality protects against. Without net neutrality regulations, ISPs have the ability to control consumer internet use through a variety of invasive practices. Net neutrality regulations banned three main ISP activities: throttling, blocking, and paid prioritization of content.

• Throttling is when ISPs slow down access to certain content or users. This tactic is often used to give priority to users with specific plans or specific sources of content.
• Blocking is simply when an ISP blocks or prevents access to certain content or websites. This practice allows ISPs to virtually prevent users from accessing specific content.
• Paid prioritization is when companies pay ISPs for preferential treatment, or a “fast lane,” increasing the speed of their particular website. This activity is the most concerning of the three. Paid prioritization gives greater opportunities to wealthy corporations and news giants who have deep pockets, while putting smaller organizations who have fewer financial abilities at a disadvantage.

Without regulation, ISPs are free to engage in any of these practices and influence consumer internet use.

After over a year without net neutrality, democratic lawmakers continue to push for new regulations. Currently, the Save the Internet Act of 2019 (“the Act”) is awaiting a vote in the Senate. The Act would restore the FCC’s ability to police the internet and ban ISPs from throttling and blocking access or allowing paid prioritization of content. The Act passed the U.S. House of Representatives this past April, by a vote of 232-190. However, the Act has yet to pass the Senate and its chances are not promising. Mitch McConnell said it was “dead on arrival” and President Trump promised to veto the bill if it lands on his desk. While republican lawmakers are not entirely against net neutrality principles, the Act appears too close to previous net neutrality regulations to appeal to both sides of the aisle.

Now, the real question becomes whether or not consumer access to the internet has truly suffered without net neutrality. We have been living without net neutrality for over a year and it seems that we have not truly experienced any real difference in internet use. ISPs have not made any big changes that threaten consumer internet use and the status quo appears to be preserved. With the Act still on the table, ISPs and corporations may be concerned that any invasive practices on their end could spark support for the legislation. Regardless, the public scrutiny should not wane. Just because we have not yet experienced a threat to consumer internet use does not mean we are immune from abuse. Some speculate that changes to internet access will come slowly and add up over time. As consumers, we must be wary of this possibility.

Furthermore, many argue that the principles of net neutrality have been violated long before the legislation was repealed. Under old net neutrality regulations, ISPs were able to offer different data plans that provided different aspects of internet access. For example, AT&T and T-Mobile limited video streaming for entry-level (and lower priced) plans and forced consumers to pay more for high-definition videos even while old net neutrality regulations were still intact. The repeal of net neutrality can impact individuals of lower socioeconomic status by making it even easier and legal for ISPs to engage in practices that discriminate based on what an ISP charges a consumer.

Fearful of these abusive and discriminatory practices, several state legislators have drafted their own versions of net neutrality regulations. California, Hawaii, New Jersey, New York, Oregon, Vermont, and Washington have all adopted legislation or resolutions aimed at protecting net neutrality principles. Over thirty states have introduced similar legislation and are in the process of adopting official regulations. Initially, the FCC tried to block state interference and claimed that state laws would create a “patchwork of regulations” that would be confusing because internet access transcends state borders. In Mozilla Corporation v. FCC, decided on October 1, 2019, the D.C. Circuit Court rejected this claim. In a major win for state rights and net neutrality supporters, the court held that states can make their own legislation.

While it is doubtful that the Senate will pass new legislation anytime soon, it is clear that State legislation will be increasingly influential. However, ISPs and corporations still hold new found legal rights to control internet access in most states. If this power remains unchecked, it is just a matter of time before it is abused, and conflict will undoubtfully ensue.

 

Nicole Jaeckel is a J.D. candidate for the class of 2021 at Cornell Law School. In 2018, she obtained her B.A. in Political Communication from The George Washington University’s School of Media and Public Affairs. Nicole is an associate writer for The Issue Spotter. She also serves as an associate writer for the LII Supreme Court Bulletin and the IT Director for Cornell Law Students Association.

 

 

 

Suggested Citation: Nicole Jaeckel, Over A Year Without Net Neutrality: Do We Really Need It?, Cornell J.L. & Pub. Pol’y, The Issue Spotter, (Nov. 18, 2019), http://jlpp.org/blogzine/over-a-year-without-net-neutrality-do-we-really-need-it/.