July 17, 2014 | By April Glaser

Deep Dive: In Defense of A Neutral Net

The Federal Communications Commission is about to make a critical decision about whether Internet providers will be allowed to discriminate against certain websites. The issue is network neutrality—the principle that Internet providers must treat all data that travels over their networks equally. On Tuesday, EFF filed comments with the FCC to weigh-in on this critical debate.

Without network neutrality, companies like Comcast and Verizon will be permitted to charge websites to reach users faster. This would be a disaster for the open Internet. When new websites can’t get high-quality service, they’ll be less likely to reach users and less likely to succeed. The result: a less diverse Internet.

We want the Internet to live up to its promise of improving the way we communicate, learn, share and create. We want it to continue to foster innovation, creativity, and freedom. We don’t want regulations that will let ISPs turn into gatekeepers, making special deals with a few companies and inhibiting new competition, innovation, and expression.

Here’s an overview of how network discrimination hurts free expression and innovation, how we can safeguard against it, and what EFF—with your help—is doing about it.

The Dangers of Discrimination

Net neutrality is not just about slowing down websites’ access to users. Equally important, it also protects against other forms of pay-for-play and unfair discrimination. Here are a few ways ISPs have throttled or blocked content in the past.

  • Comcast was caught interfering with their customers’ use of BitTorrent and other peer-to-peer technologies
  • The FCC fined Verizon for charging consumers for using their phone as a mobile hotspot

These practices pose a dire threat to the engine of innovation that has allowed hackers, startup companies, and kids in their college dorm rooms to make the Internet that we know and love today.

The FCC’s Past Attempts at Net Neutrality

The FCC proposed rules in 2010 that were designed to address net neutrality, though they were never enforced. Verizon immediately sued the FCC and the issue was tied up in the courts for the next four years.

We had many concerns about the FCC’s old net neutrality rules. As we explained in comments in 2010, the FCC's rules would have allowed ISPs free rein to discriminate as long as it was part of “reasonable efforts to… address copyright infringement.” This broad language could lead to more bogus copyright policing from the ISPs.

We were also uncomfortable giving the FCC power to over-regulate the Internet, and so we were concerned about the broad authority the FCC claimed when proposing the rules in 2010. Not to mention that the FCC has a sad history of being captured by the very industries it’s supposed to regulate while ignoring the interests of the Internet-using public. In the early 2000s, for example, the commission essentially ignored the comments of hundreds of thousands of Americans who opposed media consolidation.

In January of this year, the issue came to a head. A federal court ruled that the FCC didn’t have authority to pass the old net neutrality rules in the way that it did, sending the FCC back to the drawing board to create new rules to keep Internet providers in check.

In response, the FCC has proposed the plan we’re debating today. Unfortunately, these proposed rules would allow companies like Comcast and Verizon to give preferential treatment to favored websites and web applications. This is exactly the type of unfair environment that could inhibit innovation and speech.

We Need Some Rules of the Road

Currently, the FCC does not have the authority to stop Internet access providers from making special deals to speed up or slow down access to websites. This is because in 2002 the FCC classified the Internet as an “information service” like videoconferencing. And just as the FCC can’t tell videoconferencing services what rates they can charge, under the current rules, the FCC can’t tell Internet providers not to charge websites to reach users at faster speeds.

To get to a place where the FCC can actually enforce narrow net neutrality rules, the FCC first needs to change how it classifies high-speed Internet access. The FCC could reclassify the Internet as a “telecommunication service” like telephone service. That would give the agency the authority to enact rules to prevent non-neutral conduct by Internet providers.

Strict Limits on FCC Authority

While we want to ensure the FCC has the authority it needs to prevent abusive network discrimination by Internet access providers, we don’t think the FCC should have free rein to regulate other aspects of the Internet. The FCC’s role needs to be narrow, firmly bounded, and limited to specific problems, like prohibiting Internet providers from charging any kind of fees for prioritization—and promoting local competition with a renewed “open access” rule. The FCC should also sharply define its regulatory reach with forbearance. Essentially, forbearance is the process by which the FCC expressly commits to not apply certain rules to a particular communications service. Without it, a whole set of policies will be applied to the Internet that were originally created for telephone systems (in the 1934 Communications Act).

So while EFF thinks it’s important that the FCC reclassify Internet access as a telecommunications service in order to create some bright-line rules against network discrimination, we think it’s equally important for the FCC to limit its authority to only do what is needed to preserve an open Internet—and no more.

Ultimately, we’d prefer to see more competition and community solutions, but while that's in the works, EFF thinks that the FCC needs to enact a few rules of the road to protect users from the kinds of non-neutral behavior we’re already beginning to see from Internet providers.

How You Can Help

The FCC has opened a “rulemaking” process, where the agency has asked the public to weigh-in on its proposed rules. We created a tool, DearFCC.org, to help everyone take part in this important debate. While the first round of commenting ends at midnight Friday, the public has up until September 10 to submit comments.

If the FCC embraces rules that allow wealthy incumbent websites to pay for premium access to Internet users, the services we see in the future could be the same companies that are popular today. But we want to expect the unexpected. To get there, we have to make certain new businesses and services are able to meaningfully connect to users.

This rulemaking process is one of our best opportunities to be heard. Visit DearFCC.org and tell your story today.

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