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US tech giants join the fight against repeal of net neutrality regulations

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via Flickr © jitze (CC BY 2.0)

  • Facebook, Google and Netflix sign-up to go legal on the FCC
  • They are, quite literally, making a federal case of it
  • California and New York to pass state net neutrality laws
  • Pai ajitated by opponents' ajitprop

Under the chairmanship of Ajit Pai the US telecoms regulator, the Federal Communications Commission (FCC), has repealed net neutrality in the United States. On the 14 December 2017 the Republican majority on the Commission board voted to reverse the decision made in 2015, during the Obama administration, to regulate the Internet under Title II of the Communications Act of 1934.

For a bureaucratic organisation the FCC has acted remarkably quickly after that contentious decision and, on Thursday last, January 4, 2018, (just three weeks after the repeal vote took place) published the official text of 539 densely-packed pages provocatively entitled"Restoring Internet Freedom") in the Code of Federal Regulations. The repeal has caused ructions throughout the US telecoms and Internet sectors and if the FCC thought that by acting so quickly to codify the new changes in federal regulations it could minimise and stifle widespread opposition to the new regulations it was mistaken.

The reality is that hostility to the repeal of net neutrality is growing. The first indication of powerful opposition to the new regime came just five minutes after the FCC vote when the Attorney General of New York, Eric Schneiderman announced that he will spearhead a multi-state lawsuit against the FCC to "stop illegal rollback of net neutrality". Shortly later, Bob Ferguson, the Attorney General of Washington State said that he too would sue the FCC.

Meanwhile membership of the Internet Association, a powerful industry group centred on Silicon Valley and dedicated to having the Ajit Pai's repeal repealed, is growing. Last Friday, after keeping their heads well down below the parapet as arguments raged when the repeal process was underway at the FCC, some to the biggest technology companies in the US, including Facebook, Google and Netflix, finally took a stand and publicly declared that they will put their corporate and financial clout behind the forthcoming legal challenge to the FCC's decision that will permit ISPs to block or throttle online content, prioritise traffic and charge premium rates for fast and delivery of content to subscribers. Earlier, although many members of the Internet Association had voiced their hostility to the new rules, most of them were start-ups and small companies of limited individual or even collective influence.

Commenting on the FCC's enshrining the text of "Restoring Internet Freedom" in the Code of Federal Regulations, Michael Beckerman, the CEO of the Internet Association said, "The final version of Chairman Pai’s rule, as expected, dismantles popular net neutrality protections for consumers. This rule defies the will of a bipartisan majority of Americans and fails to preserve a free and open Internet. The Internet Association intends to act as an intervenor in judicial action against this order and, along with our member companies, will continue our push to restore strong, enforceable net neutrality protections through a legislative solution.”

For his part, Chairman Pai has said that the abandonment of the policy of net neutrality will "encourage more investment and spur innovation by Internet Service Providers". He also argues that legal challenges against the FCC vote will fail because all that has been affected is a return to the status quo ante that pertained before 2015. Time will tell.

Big majority of US voters of all parties see net neutrality as "vital consumer protection"

Key arguments against the FCC's repeal of net neutrality are that one of the primary effects will be that ISPs will no longer have any incentive and therefore won't bother to roll-out fast broadband to underserved and rural areas, thus disenfranchising many Americans of the ability to participate in the digital economy.

Another is that the FCC actually does not have the legal power to regulate ISPs as if they are telcos. Starting in just a few weeks time this contention will face a series of legal tests as the Internet Association has confirmed that it will seek legal redress to block the FCC's new policy at both state and federal level and in the US Congress via use of the Congressional Review Act.

Meanwhile, California and New York have added other string to their war bows. They maintain the FCC regulations cannot pre-empt or override state rights and have therefore decided to frame their own state net neutrality laws! These proposals, tabled in the state legislature by both Los Angeles and San Francisco, would, if enacted, mean that ISPs way out West would have to abide by Californian net neutrality regulations that would exactly mirror the Obama-era rules that the FCC has just repealed.

The New York bill goes even further. It's main provision is that ISPs holding or applying for contracts to provide services in New York State would be allowed to do so only if they agreed to be bound by state legislation requiring the application of the net neutrality principles and regulations that pertained in 2015.

However, the sting in the tail of the bill tabled by New York Assemblywoman, Patricia Fahy, is that ISPs would be prohibited from offering faster data speeds and prioritorised web traffic to companies that pay them directly - and the restriction would apply outside the state. Ms Fahy commented, "This is a bill that could thread the needle [for other states].The Feds have walked away from a free and open internet. We’re using a side door. We want to do this legislatively is because we know we can move faster than a court case.”  

By it's very nature the Internet operates across and regardless of state lines and the raison d'etre for the existence of the FCC is to unify the nation under a single regulatory regime for telecoms and thus prevent the development of a patchwork of regulations introduced and policed by individual states. Indeed the FCCs constitution says that individual states cannot go their own way where telecoms regulation is concerned. Whether or not that stricture applies to the Internet is what will be tested in court.

It seems increasingly likely that net neutrality will also be a big issue in the US mid-term elections that will be held later this year. A new survey conducted by the University of Maryland and published just last month showed that 83 per cent of voters wanted net neutrality rules to be kept as they were before the repeal. That included 89 per cent of Democratic voters, 86 per cent of independent voters and 75 per cent of Republican voters - so net neutrality is an issue that cuts clean across party political lines as far as the electorate is concerned.

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