By Jaclyn Collier
In 2015, the Federal Communications Commission (“FCC”) passed regulations to protect the “Open Internet,” a concept more commonly called net neutrality. These regulations create three “bright line” rules designed to safeguard innovation on the Internet and encourage investment in broadband networks. See Open Internet, FCC.gov (last accessed Feb. 17, 2017), https://www.fcc.gov/general/open-internet. The first is the “No Blocking” rule, which prohibits broadband providers from blocking access to services, applications, legal content or non-harmful devices. The second is “No Throttling” which prohibits providers from impairing Internet traffic on the basis of the user’s online destination. The third rule, “No Paid Prioritization,” prohibits providers from favoring one kind of lawful Internet traffic over another, and prioritizing content or services of the providers’ affiliates. These regulations are designed to stop broadband providers from disadvantaging consumers’ access to the Internet. These regulations also classified broadband providers as “common carriers” under Title II of the Communications Act of 1934, which subjects them to the broad regulatory powers of the FCC.
There has been discussion as of late about potentially repealing net neutrality regulation. Consumer advocates argue that these regulations are designed to provide protections to consumers and prevent the big broadband providers from abusing their near-monopoly power. Network and broadband providers argue that these regulations that treat them like a utility (e.g., phone companies) are unnecessarily onerous and stifle innovation. There was also little evidence that this issue had materialized as a business practice for broadband providers before the regulations were passed.
If the regulations are repealed, there may still be some lasting benefit from the short-lived net neutrality requirements. The passage of net neutrality regulations has raised the public’s awareness of this issue, which could mean that broadband providers will have more difficulty flying under the radar and covertly impeding consumer access to the Internet. This potential issue may dissipate as technology innovators continue to develop faster and better ways to allow users to access the Internet. After all, the Internet was able to operate in a neutral fashion for over twenty years without regulatory intervention, due in some part to the fact that it is a forum for innovation and modernization.
If the new FCC chair looks to repeal the existing regulations, Congress and the FCC should consider implementing new regulations that protect net neutrality while no longer treating broadband providers as common carriers. For example, broadband providers could be removed from the definition of common carriers under Title II of the Communications Act, and new regulations passed to specifically address the same concerns about net neutrality that are addressed under existing regulation. This would allow for regulation to protect the fundamental principles of net neutrality and access to the Internet while no longer stifling broadband providers with unnecessary utility-like regulation.
Student Bio: Jaclyn is the Chief Content Editor of the Journal of High Technology Law. She is currently a 4L evening student at Suffolk University Law School. Jaclyn works at a financial services firm where she focuses on regulatory and compliance issues. She enjoys cooking, reading (thankfully), and hiking.
Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHTL or Suffolk University Law School.
