April 23 Repeal Date for Net Neutrality Looms, Uncertainty Remains

April 23 Repeal Date for Net Neutrality Looms, Uncertainty Remains

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Net neutrality is a term that has been in the political lexicon for almost 15 years. For many though, it has only entered their consciousness in the wake of heated debates over its repeal.

Vanderbilt students, like millions of their peers around the country, have become poster children for the issue. Born into a world dominated by technology, their academic and professional careers have been characterized by the internet. The prospect of a shake-up coming to the internet and the way it is accessed can affect everything from leisure activity, like watching Netflix, to professional research and work. Daniel Gervais, Director of the Vanderbilt Intellectual Property Program at Vanderbilt Law School, weighed in on the rule reversal and what it may mean for higher education.

Net neutrality was coined by legal scholar Tim Wu in 2003. It is the principle that internet service providers (ISPs), such as Verizon or Comcast, must treat all internet content and data equally. This means that providers cannot block or slow down certain content from users, nor can they prioritize their own content over that of its rivals. Ultimately, net neutrality ensures that everything on the internet is equally accessible.

Disputes over the regulation of service providers is nothing new for presidential administrations. Similar debates went on throughout the Clinton, Bush, and Obama years.

In 2004, then Federal Communications Commission (FCC) chairman, and Bush appointee, Michael Powell established guiding principles for the broadband network industry, which included the freedom to access content, use applications, attach personal devices, and obtain service plan information. These ideals were created in hopes of preserving “Net Freedom.”

The following year, in 2005, the FCC released an official policy statement to ensure that “providers of telecommunications for Internet access. . . are operated in a neutral manner” and “to ensure that broadband networks are widely deployed, open, affordable, and accessible to all consumers.”

In the same year, and in the first move of its kind, the FCC investigated Madison River Communications for blocking the ability to use voice-over-internet calls for users. The company ultimately paid a $15,000 fine and agreed to stop blocking this service from consumers.

A 2007 investigation by the Associated Press found that Comcast was discriminating against certain content and intentionally slowing down and blocking BitTorrent, a popular file sharing platform. In 2008 the FCC ruled that Comcast’s “throttling,” or slowing down of BitTorrent was unlawful. The punishment handed down by the FCC, however, was eventually overruled by a court of appeals.

In 2014, the FCC had the option to preserve the net neutrality framework or create broadband “fast” and “slow” lanes in which content producers, like Amazon or Netflix, would pay for faster delivery of services. Leading up to the decision, President Obama made a recommendation to maintain a free and open internet.

Tech giants like vimeo, reddit, and tumblr led aggressive campaigns in support of net neutrality. There was also vocal public backlash against a tiered internet. The FCC ultimately voted to reclassify high-speed internet as a telecommunications service, solidifying net neutrality principles.

In a reversal of this policy, the FCC voted in December to repeal the existing net neutrality rules. The vote also reversed other rules for high speed internet, such as the rural and low-income access programs, which provide subsidies to those who cannot afford internet access, as well as consumer protections. The repeal is set to be put into action on April 23.

Proponents of the FCC’s decision say that net neutrality rules were an example of unnecessary government regulation. Current FCC chairman Ajit Pai attests that deregulating the industry will encourage innovation and competition. Pai also believes that this will incentivize service providers to build out internet access to underserved areas of the country.

Interestingly, those who oppose the change make a similar argument and say that net neutrality fosters innovation. Opponents of the FCC’s vote recognize net neutrality as fundamental to protecting free speech. Critics add that service providers are performing very well and have not been discouraged by net neutrality rules. They also point to cases of providers blocking content, like AOL blocking emails that contained “dearaol.com” an advocacy group that opposed AOL, ISP BellSouth blocking access to Myspace, and AT&T barring users from PayPal, as proof that net neutrality is vital to maintain a free and open internet. Companies like Google, Facebook, and Netflix have been supporters of net neutrality in the past, but have been notably less vocal this year.

While the FCC’s move affects the individual behavior of consumers and service providers, it may also have important ramifications for higher education institutions like Vanderbilt. The Vanderbilt Office of Federal Relations (OFR) said they have not taken an official position on the FCC’s vote, and have instead been focusing their efforts on the Republican tax plan.

The OFR did say that Vanderbilt belongs to the Association of American Universities (AAU) and Educause, as well as other organizations who have engaged with this issue. According to Christina West of the OFR, “in general, Vanderbilt aligns itself with those associations to which we belong. This is an issue where the voices of those associations can be particularly influential because they speak for the entire higher Ed community.”

AAU was “dismayed” that the FCC voted to end network neutrality protections and contends that “Rescinding net neutrality regulations will have a harmful impact on students and the higher education community that serves them.” In an official statement AAU president Mary Sue Coleman said, “The order could also harm free speech, as internet providers could choose to block access to content their users find objectionable, including critical research on various controversial issues.”

Taking a similar stance in July, Educause wrote that “In the absence of rules. . . higher education institutions, libraries, and other public interest entities face a future in which they will either have to pay to ensure effective, appropriate end-user access to their online resources and services or risk seeing such access degraded to the point that it severely undermines the educational, research, and service objectives their online offerings were intended to fulfill.”

To Vanderbilt Law School professor Daniel Gervais, everyone should be in support of net neutrality with the exception of a few network providers.

He noted that at its inception, the internet was supposed to be an open, non-commercial network that would connect universities. In his explanation of net neutrality, he drew a metaphor: Imagine the company that provides electrical power to your house makes a deal with an appliance company. If you buy an appliance from company X, you will pay Y per kilowatt of power. However, if you buy an appliance from company W, you will have to pay 2Y per kilowatt of power. With the repeal of net neutrality ISPs can create similar pricing schemes for consumers, which permits them to favor or discriminate against certain content.

Gervais can see a few ways universities may be affected, though he noted it is very difficult to tell exactly what may happen. Departments that use a lot of bandwidth for their research, like 3D imaging for instance, may be impacted. However, he did not foresee academic journals or research being particularly hurt by the decision.  

Professor Gervais pushed back against Chairman Pai’s theory that deregulating service providers will incentivize them to improve internet access in underserved areas of the country. History has shown that the only way internet access has been provided outside of highly populated areas has been when it’s been mandated or highly subsidized, Professor Gervais said. Gervais rhetorically asked, “Why would a company go to a remote part of Montana or Alaska, there’s no commercial incentive.”

Often, at the center of the debate are concerns over free-speech. Using another metaphor from Professor Gervais, with the repeal of net-neutrality, ISPs, who “control the pipes,” are enabled to also control the flow of content within the “pipes.”

An interesting aspect of net neutrality is ex-ante and ex-post control. Both from Latin, ex-ante means before the fact and ex-post means after the fact.  Gervais explained that the broad protections on free speech in the United States typically results in ex-post control. It is only after the fact that speech is made or expressed, something criminal for instance, that the speech is stopped. In more rare circumstances, as is the case with child pornography, ex-ante control used. Prior restraint is useful to understanding ex-ante control.

Prior restraint is censorship that occurs in a prohibitive manner, stopping expression before it can be made. This is different from “subsequent punishment,” which punishes speech after it has been made. Prior restraint and ex-ante control stops the communication from happening at all. With the repeal of net-neutrality, ex-ante control becomes possible for ISPs. Speech and internet content can be slowed down or blocked all together before it can even be expressed.

In preparation for the April 23 repeal date of net neutrality, some states have already looked into enacting net neutrality laws of their own. At least a dozen states have investigated the possibility of preserving net neutrality principles for those who conduct business within their borders. Montana Governor Steve Bullock signed into place net neutrality requirements via an executive order in January. Shortly thereafter, in March, Washington enacted a net neutrality law. Most legal experts think these efforts of individual states, as well as lawsuits against the FCC’s repeal, will face a lengthy process in court.

While it is still unclear exactly how ISPs and content producers will behave without net neutrality provisions in place, it is important to note that in April of 2017, one ISP giant, Comcast, altered their net neutrality promises to customers after Chairman Pai announced the FCC’s intention to end net neutrality.

Comcast’s new net neutrality promises has subtle differences from its previous version. What once stated, “Comcast won’t block access to lawful content and “Comcast won’t throttle back the speed at which content comes to you,” became “We do not block, slow down or discriminate against lawful content.” The current statement omits any future commitment to preserving net neutrality. Additionally, they previously promised, “Comcast doesn’t prioritize internet traffic or create paid fast lanes.” The new promises do not mention paid prioritization. Comcast’s guarantee to “make the internet more accessible to low income families” is also absent from their new policy.

With the April 23 repeal date today, an internet devoid of net neutrality will begin to reveal itself.

 

About author

Joshua Mendelson

Josh is a senior from Deerfield, Illinois. He is double majoring in cognitive studies and public policy studies, and minoring in Medicine, Health, and Society. His interest in politics grew from holiday discussions between his extended family and reading the Chicago Tribune every morning before school. Josh is on the club baseball team at Vanderbilt. He loves to read and hike with his Golden Retriever Sophie.

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