Net Neutrality, Part III: Into the Unknown (2018)

In the first post of our three-part series on the Net Neutrality debate, we looked at Round 1, covering 2007 to 2010. Then we explored Round 2 in the second post (2013 to 2017). In our final installment, we will explore Round 3: starting at the beginning of 2018, and looking forward into uncharted territory.

 

Murky Beginnings for Net Neutrality in 2018

At the end of the previous article in this series, I asked a somewhat rhetorical question: Will today’s Internet Service Providers (ISPs)—including some that own traditional media outlets and very large cable-television delivery footprints—allow competitors to send content across the cable operator’s own ISP, without some form of additional fee or performance penalty?

The jury is still out on that question, although one thing is clear as we enter 2018: Transparency by the FCC around Net Neutrality policies has yet to be established.  

 

What We Don’t Know About Net Neutrality Today

I did a recent search of the FCC website (Feb. 7, 2018) to obtain information about the current state of Net Neutrality in May 2018. Two somewhat contradictory pieces of information emerged from the search.

First, it’s still unclear whether the 2017 “repeal” of Net Neutrality takes us back to the rules of early 2015; further back, to early 2010; or even way, way back, to the time before the Comcast-Bittorrent court case in 2009. Each of these points of reference had distinct Net Neutrality rules associated with it, but the rollback of 2017—to be implemented, at least by some timelines, in the first half of 2018—appears to bundle all of these Net Neutrality stages together, adding unnecessary confusion.

Second, and perhaps more interesting, is the fate of the Open-Internet Ombudsperson role that was to be established during part of the FCC’s most recent “repeal” of Net Neutrality rules. A Google search reveals that an “Open-Internet Ombudsmen” page existed as recently as June 2017, saying that the role was filled by an FCC representative. The representative was first appointed in 2015, with the goal of “assisting the public and edge providers with Open Internet complaints and inquiries.”

Clicking on the “Open Internet Ombudsperson” hyperlink, however, routes back to Chairman Pai’s announcement of the “repeal” of Net Neutrality rules. In other words, it’s uncertain whether there’s even an Ombudsperson role in place at the FCC at the time of publication, in May 2018.

 

What We Do Know: Net Neutrality Needs a National Definition

For all the uncertainty about the level of Net Neutrality rollback and the somewhat opaque installation of an Open-Internet Ombudsman, we do know one thing for certain: The general public does not have definitive information on a national level. Failing to address confusion about the unregulated, pre-“third way” approach to Net Neutrality puts the FCC in the position of gatekeeper of a gate without a key.

We also know something else, which is quite disconcerting: Companies with a large stake in the Net Neutrality debate are already lining up to strip the government of authority to regulate what will rapidly become unregulated business for telecoms, cable operators and traditional ISPs.

AT&T is on the forefront of this movement, as it has attempted to fend off a Federal Trade Commission (FTC) suit based on mid-Net Neutrality rules. The initial suit was brought by the FTC in 2014, in the U.S. District Court of Northern California. It centers on AT&T’s practice of selling unlimited data packages to consumers, but only fulfilling that service’s delivery at very low bandwidth rates.

A recent counter-argument by AT&T—intended to prove the FTC has no regulatory authority now that Net Neutrality rules have been repealed—was recently rejected to the U.S. Appeals Court. The company has indicated, however, it will likely request a ruling from the U.S. Supreme Court on whether AT&T’s now-unregulated business falls under regulatory oversight. According to CNET, “the deadline to file its petition [for a ruling] is May 29.”

A key question is at stake in the AT&T case: whether or not Net Neutrality affects the throttling of just certain types of content—such as streaming video, which can be assessed on the fly through the use of deep packet inspection (DPI) technologies—or the throttling of overall bandwidth, regardless of packet type.

 

What We Need to Know: Where Does Regulation Begin and End?

My personal feeling is that this lack of transparency needs to rapidly change. Not only does it leave the general population in the dark on how to address concerns about broadband providers, but it also opens up the fundamental question as to whether state or local legislative bodies even have the authority to enshrine some form of Title II regulation.

A common complaint by consumers centers on bandwidth speeds by their local ISP. As in the AT&T case mentioned above, landline and cable operator ISPs often sell their service based on a particular speed. But in reality, available speeds are often much lower.  

One would think that the FCC would champion the transparency of actual data speeds on ISP networks. However, Chairman Pai stated that “the FCC would simply require internet service providers to be transparent about their practices so that consumers can buy the service plan that’s best for them, and entrepreneurs and other small businesses can have the technical information they need to innovate.”

In other words: There will be no common, objective measurement grounds. Rather, each ISP can rely on their own infrastructure and reporting frameworks to address how they accommodate their advertised bandwidth speeds.

Regardless of the FCC’s intent with this “repeal” of the broadband regulatory framework, many content providers, online video platforms (OVPs) and even ISPs are seeking answers around how to monetize content in an era of uncertainty.

Throughout the next few weeks, expect to see a concerted effort being put forth by key websites that are keen to see Net Neutrality frameworks restored. According to Wired, this “red alert” effort will encompass sites as diverse as “Etsy, Reddit and OKCupid” in an effort to alert consumers to the perceived dangers of Net Neutrality rollback.

Ajit Pai, Chairman of the Federal Communications Commission

 

What Can You Do In Response to the Net Neutrality ‘Repeal’?

A key first step is to keep the pressure on ISPs to accurately report their average bandwidth speeds, since over-the-top (OTT) services rely on higher broadband speeds to deliver quality content. One practical way to increase transparency can be accomplished by periodically testing your own ISP’s network speed, through the use of simple tools such as those available at DSLreports.com.

After testing over a multi-day period, ideally at different times of day, you’ll have a strong sense of what your average bandwidth speed really is. Armed with that information, ask the ISP to explain why your average speed over a multi-day period appears to be significantly lower than what the ISP advertises, if that is indeed the case.

Once you have that knowledge, regardless of whether you feel the ISP is being transparent, it’s also worth sending this type of detail (and the ISP’s response) on to your elected officials—requesting that they legislate an accurate, objective and transparent measurement system for broadband. Only through the use of objective measurements can we then begin to have a meaningful national discussion on the impact of the Net Neutrality rollback.