What Is Net Neutrality? How FCC's Title II and Open Internet Rules Came To Be

When the Federal Communications Commission (FCC) set in place its rules on net neutrality in 2015, it was the culmination of a multi-year battle that yielded an outpouring of public engagement.

In a matter of months, that hard fought battle may move back into the foreground of the internet—a possibility that leaves internet service providers and consumers in uncertain positions. Before understanding where the internet might be going, it’s first important to know what it’s like today and how it got there.

What Is Net Neutrality Like Today?

Net neutrality hinges on a simple principle that internet service providers should provide access to content regardless of its source and should treat all data equally and without discrimination. In action, it’s a tool for protecting internet users from practices that may interrupt their internet experience.

Net neutrality prevents ISPs from slowing or throttling a user’s connection, guaranteeing they get the connection speeds they pay for regardless of how they are using the service. It also ensures carriers can’t treat services differently, providing a favorable experience for one product while slowing access to another. Service providers also cannot block specific content.

The concept of net neutrality can be implemented in a number of ways, but the FCC under President Barack Obama and Chairman Tom Wheeler opted to reclassify ISPs as common carriers under Title II of the Communications Act of 1934. The decision is often referred to as the Open Internet rules.

The language of common carrier laws gave the FCC broad regulatory powers over internet providers, and provides the commission with the right to enact rules that “promote competition in the local telecommunications market” and “remove barriers to infrastructure investment” while barring companies from making any “unjust or unreasonable discrimination in charges, practices, classifications, regulations, facilities, or services.”

The Debate Over Title II

With the definition of net neutrality agreed upon, the conversation about it has largely pivoted on how to protect and enforce the markers of a fair and open internet.

The primary objection of the opponents of the current rules is the Title II classification. As it currently stands with ISPs classified as common carriers, the FCC has been able to challenge practices that it finds to be anti-competitive and potentially unfair.

For example, the FCC has taken a particular interest in zero rating, a practice in which a carrier chooses not to count the data used by a particular app against a user’s data allotment.

AT&T became a target of the regulatory body for offering unlimited streaming of its online television service DirecTV Now to its customers while competitors like Sling TV still counted against the data cap. The only way for Sling TV users to get the same, unlimited experience that DirecTV Now users got on the AT&T network was if Sling TV provider Dish paid AT&T for the privilege.

There are legislative approaches to regulating internet service providers— there are about 50 countries around the world have some form of net neutrality rules on their books according to Roslyn Layton, an internet and economics policy author—including some that have been proposed by American legislators.

Republican Senator John Thune of South Dakota pushed for a bill in 2015 that would codify the tenants of net neutrality into law and banning the practice of paid prioritization, in which services pay internet providers for faster speeds.

John Gasparini, tech policy fellow at nonprofit open internet advocacy group Public Knowledge, noted to International Business Times the particular bill provided for a "very narrowly defined” version of net neutrality and didn’t provide the FCC any authority to regulate broadband beyond the basic principles.

He warned that most version of legislative protections proposed to take the place of Title II in regulating internet providers would be equally as “toothless” as Thune’s proposal and would “prevent future FCCs from taking up this issue and acting to protect consumers again.”

How Has Net Neutrality Changed The Internet?

Title II classification has been in place for just over a year, and most internet users likely have not felt its effects. That’s by design, according to Ernesto Falcon, legislative counsel at the Electronic Frontier Foundation.

“We’ve been under the order for a year but frankly the internet has operated in a neutral manner for much longer than that,” he told IBT. “Every day we see something new and exciting on the internet and I don’t think any product or service has ever gone off the market or not come to market citing open internet rules as the reason.”

Layton, a Trump transition team member, argued regulations have hurt access to high-speed connections—such as the FCC changing the definition of broadband by increasing the minimum download speeds required from 4Mbps to 25Mbps, and the minimum upload speed from 1Mbps to 3Mbps, a move that at the time tripled the number of houses in the United States without broadband access.

"If you go to the FCC and you read the complaints around open internet, nobody says, 'I can't access the content I want.' Nobody says, 'I'm getting blocked,' Layton told IBT. “What they do complain about are slow speeds and they complain about wanting more wireline facilities to their home."

Mark Jamison, the director of the Public Utility Research Center at the University of Florida and Trump transition team member, noted to IBT a decline in investment from internet service providers, citing research from Hal Singer, an economist at the Progressive Policy Institute—a think tank that has received sizable grants from AT&T.

But Falcon noted broadband subscriptions have gone up since the change, as have speeds. According to the FCC’s own report on broadband connectivity in the U.S. released in December 2016, median connection speeds have increased—including a 22 percent jump from 2015 when the new definition for broadband and Open Internet rules were implemented.

While many companies claimed their infrastructure investment would halt or slow investment in technologies that improve and expand broadband access, the very opposite appeared to be the case from the company’s earnings reports.

During an earnings call held on Jan. 26, 2016, AT&T CEO Randall Stephenson told investors the company planned to invest “aggressively” in network architecture. CFO John Stephens echoed the statement, saying the company planned to invest around $22 billion in its networks—despite the company’s senior vice president Bob Quinn claiming just one month earlier that AT&T had to “shelve a bunch of stuff” because of net neutrality rules.

Likewise, Comcast increased its investments in its internet infrastructure and company CFO Mike Cavanagh noted it intended to continue that investment going forward. Time Warner Cable (now owned by Charter) reported an increase in investments to “improve network reliability, upgrade older customer premise equipment, and expand our network to additional residences.” Verizon said it was as dedicated to investing in its network in 2016 as it was in 2015.

The industry as a whole continued to grow under the first year of the Open Internet rules. According to a December 2016 report from content delivery network Akamai Technologies, every state in the U.S. saw a year-over-year increase in network speeds.

The report also noted, “U.S. telecommunications companies have remained active in deploying” new and faster services across the country, a trend Akamai said had been consistent for several quarters—encompassing the timeframe in which carriers began operating under Open Internet regulations.

The year prior to net neutrality being codified, global telecommunications company Level 3 accused four major American ISPs of deliberately causing congested networks and refusing to build out their infrastructure unless content providers paid them to do so.

Sheer demand for connectivity may be a primary driver for this; telecommunications companies may argue their networks would be even better and faster were it not for the FCC’s oversight. However, their growth—and profits—have done anything but dry up.

Were the Open Internet rules to be changed, much of what was experienced under its brief time on the books may change. Whether it returns to an era of throttled speeds and data caps or advances to a high-speed future is yet to be seen.