Net neutrality death delayed

25 April 2018 | Natalie Bannerman


The Open Internet order was due to be revoked this week, but as delays have pushed this back, we look at how the entire net neutrality saga unfolded.

Monday (23 April) marked the day that the net neutrality repeal was due to come into effect and if you listened to most OTT’s and content providers this was the day that the internet was coming to an end.

Back in February, Ajit Pai, chairman of the Federal Communications Commission (FCC) and advocate of the net neutrality repeal, published the Restoring Internet Freedom order which outlined the date which the repeal would come into effect. The order excluded five amendatory instructions (2, 3, 5, 6, and 8), which have delayed approval from the Office of Management and Budget (OMB). These approvals of the new rules – which are largely to determine whether or not the transparency requirements for ISPs aren’t too demanding - has meant that the Restoring Internet Freedom order isn’t likely come into full effect till sometime next month.

The debate surrounding net neutrality has been going on way before Pai and the FCC decided to roll back the rules. It was only in 2015 under president Obama that the current net neutrality rules came into force. Tom Wheeler, the then chairman of FCC, said: "For over a decade, the Commission has endeavoured to protect and promote the open internet. Today is the culmination of that effort, as we adopt the strongest possible open internet protections".

At the time it was players like Netflix pushing for changes in Open Internet rules, lobbying against having to pay ISPs for improved delivery of content to its customers.

Following the introduction of US open internet rules, countries around the wold began reviewing its internet regulations. In 2016, Facebook planned to roll out free access to its social media services in India via a number of select operators. The plan was ultimately blocked by the Telecom Regulatory Authority of India (TRAI) on the grounds of upholding net neutrality. The regulator said: "Telecom service providers will be prohibited from offering different/discriminatory tariffs based on content, service, application or any other data which the user is accessing or transmitting on the internet." The decision was closely followed by a pre-consultation on net neutrality rules lobbied by Cellular Operators Association of India (COAI) to lift a ban on differential pricing of data services.

By the summer of that same year the EU telecoms regulator, Body of European Regulators for Electronic Communications (BEREC), had released its final guidelines for net neutrality rules. "Our rules, and today's guidelines, avoid fragmentation in the single market, create legal certainty for businesses and make it easier for them to work across border. They also ensure that the internet remains an engine for innovation and that advanced technologies and Internet of Things services like connected vehicles as well as 5G applications are developed today, and will flourish in the future," said European Commission vice president Andrus Ansip and commissioner Günther Oettinger in a joint statement.

Fast forward roughly a year and under the newly elected Trump administration, Pai is named as the new chairman of the FCC, after previous chair Wheeler stepped down. Pai has long been an opponent of net neutrality having voted against the rules, calling them "dangerous" assault on the "culture of the First Amendment."

By April 2017 Pai had begun revealing his plans to have the open internet rules of his predecessor scrapped. It was at this point that talk of the now infamous ‘light touch regulation’ came into play and Pai became very focused on using this to promote investment in next-gen networks.

"Two years ago, I warned that we were making a serious mistake," Pai said in his speech at the Newseum in Washington. "It’s basic economics. The more heavily you regulate something, the less of it you’re likely to get."

The decision was of course praised by the ISP community. Randall Stephenson, CEO of AT&T, said: “We applaud FCC Chairman Pai’s initiative to remove this stifling regulatory cloud over the internet. Businesses large and small will have a clearer path to invest more in our nation’s broadband infrastructure under Chairman Pai’s leadership.

In the days that followed Verizon was centre of a traffic throttling scandal of its own. The telco admitted to capping traffic to all video content, in a move the company said was to “optimise the performance of video applications on our network”. The news was seen as an example of what could happen if the repeal of net neutrality were to take place. AT&T had its own incident of alleged throttling when it slowed data sent through its mobile division brought by the Federal Trade Commission.

By December, the FCC had officially voted to repeal the Obama-era net neutrality rules in a 3-2 vote across party lines. The fall out was undeniably severe with Netflix, Twitter, Amazon, Facebook, Reddit, the Internet Association and a number of political opponents all taking to social media to express their outrage.  

But Pai remained strong saying that the internet thrived before the rules came into play and it would continue to do so without it. “What is responsible for the phenomenal development of the Internet? It certainly wasn’t heavy-handed government regulation, he said. Using a “light touch” approach “unfettered by Federal or State regulation.” During 1996 – 2015 he explained a staggering $1.5 trillion dollars was invested into the internet. 

But not all were convinced, at the beginning of this year and less than a month after the vote, a multi-state lawsuit, led by Eric Schneiderman and a coalition of 21 other attorneys general, was filed against the FCC over its "illegal rollback of net neutrality".

In the official press release announcing the lawsuit, Schneiderman said: “The repeal of net neutrality would turn internet service providers into gatekeepers – allowing them to put profits over consumers while controlling what we see, what we do, and what we say online. This would be a disaster for New York consumers and businesses, and for everyone who cares about a free and open internet."

Since then Mignon Clyburn, a strong supporter of net neutrality in the Federal Communications Commission, stepped down from her position after nine years with the regulator. And most recently Jon Leibowitz, the former Obama appointed chair of the Federal Trade Commission (FTC), has begun working as a private practice lawyer and now sits as co-chair for the 21st Century Privacy Coalition – the telecoms interest group- where he has lobbied against state level net neutraility rules. In his previous role at the FTC Leibowitz ushered in a number of online privacy protections, and acted as a “cop on the beat in the market for broadband services,” he said. But these days he lobbies for the likes of Comcast and says that repealing net neutrality “will not undermine consumers’ online experience or leave consumers unprotected from harmful actions taken by broadband providers.”

But as the full impact of net neutrality has yet to take hold, the global implications can still be felt. Portugal’s telecoms regulator Anacom received a complaint signed by 13 civil society organisations on the grounds of a major net neutrality violations. Anacom is being asked to prohibit zero-rating offers.

“Portugal features the worst net neutrality violations we have seen in Europe to this day. It is hard to imagine how an independent regulator cannot find those offers in violation of EU law,” said Thomas Lohninger, executive director of epicenter.works, a member organisation of European Digital Rights (EDRi). “In this complaint, we present legal and economic evidence that, by all criteria of the EU net neutrality rules, these products should be prohibited.”