Net Neutrality: The Fight Goes On

In December 2017 the Federal Communications Commission passed the Restoring Internet Freedom Order (RIFO). In June 2018 the law came into force, effectively killing net neutrality, a principle that states that internet providers, such as AT&T or Verizon, should treat all data equally. Unsurprisingly, the move sparked a major controversy involving the FCC, large corporations, the general public, and even some US senators.

Even though the RIFO is already being enforced, the fight for net neutrality goes on and the opponents of the order are dead set on restoring it. Just recently, on August 20th, New York Attorney General Barbara D. Underwood and other Attorney Generals asked the U.S. Court of Appeals to revert the RIFO.

The Prerequisites

It all began with the FCC’s Open Internet Order of 2015. The order put ISP’s in telecommunications services category making them subject to regulation as as common carriers under Title II of the Communications Act. By doing so the FCC set the net neutrality rules on federal level.  

The Open Internet Order basically prohibited telecom companies from making extra money, such as those generated from charging streaming services for providing them with better bandwidth. So, telecom giants stroke back by trying to sue the FCC and force them to amend the new rules. However, back in 2016 the D.C. Court of Appeals ruled to keep the net neutrality rules in place.

In September 2017 the Big Telecom lobbyists attempting to tear down FCC’s rules appealed to the Supreme Court. Yet, this time the FCC wasn’t even going to put up a fight. In December, the Commission, headed by none other than Verizon’s former lawyer and a proud oversized mug owner Ajit Pai, repealed net neutrality rules before the lobbyists’ case was even heard in court. Since then, all ISP’s and other internet services offerings fall into the Title I of the Communications Act regulation, meaning that government can’t tell them what to do anymore.

Why Bother?

Now, almost anyone who has internet access have at least heard that net neutrality is good for you. Why? First of all, it’s arbitrarily bad to allow your ISP to throttle down your access to the websites they don’t like or to those that didn’t pay extra. And while it is definitely bad to have your movies streaming at lesser speed, such manipulations can have much more significant ramifications.

One of the most notable examples is the situation around California firefighters and Verizon services. Reportedly, the firefighters had their mobile data speeds throttled down by Verizon on numerous occasions, some of which took place while they were fighting large-scale wildfires and needed their connection in order to “track, organize, and prioritize routing of resources from around the state and country to the sites where they are most needed,” noted Santa Clara County Fire Department Chief Anthony Bowden. Basically, this means that Verizon’s drive to revenue generation affected firefighters’ capability to protect people and property from fiery death and destruction. More than once. 

We’re fighting for #netneutrality, because it’s vital for consumers & govt. agencies — such as @sccfiredept — to have open access to online content without interference or manipulation by providers. It can mean the difference between life/death. https://t.co/XJtC7gbHv3

— Xavier Becerra (@AGBecerra) August 22, 2018

Notably, the firefighters had an interesting email conversation with Verizon. One letter from July 29 clearly states: “Remove any data throttling on effective immediately.” This email remained without answer. The next letter sent on July 30 reads “Please work with us,” and “All we need is a plan that does not offer throttling or caps of any kind.”

Subsequently Verizon acknowledged their mistake in how they “communicated with [their] customer about the terms of its plan,” and said that “like all customers, fire departments choose service plans that are best for them. This customer purchased a government contract plan for a high-speed wireless data allotment at a set monthly cost. Under this plan, users get an unlimited amount of data but speeds are reduced when they exceed their allotment until the next billing cycle.” The fact is that not everybody thinks such a revenue-first approach is appropriate in this case.

“Verizon’s throttling has everything to do with net neutrality — it shows that the ISPs will act in their economic interests, even at the expense of public safety,” said Santa Clara County counsel James R. Williams. “That is exactly what the Trump Administration’s repeal of Net Neutrality allows and encourages.”

And this is why many people are standing up against the RIFO and the “freedom” or, as some would rather say, impunity it gives to ISPs.

The Fight to Bring Net Neutrality Back

As we’ve mentioned in our previous piece on the matter, after the FCC’s decision to repeal the Obama-era net neutrality rules, many activists, internet companies, and even Senators called for restoration of the Open Internet Order.

In January 2018 the first lawsuit against the FCC was initiated by 22 states, pro-net neutrality activists, and digital rights non-profits. The lawsuit is aimed at reversing the RIFO of 2017 by deeming it “arbitrary and capricious”, as the plaintiffs claim that the FCC haven’t put a proper justification behind its decision.

Apart from suing the FCC and calling for the reversal back to the Open Internet Order of 2015, some states have taken steps to create their own laws and directives to protect net neutrality. Since February 2018, states such as Washington, Vermont, Hawaii, Oregon, and California, issued pro-net neutrality rulings and special executive orders.

The FCC is now acting to prevent states and municipal governments from getting their own laws protecting net neutrality. FCC Chairman Ajit Pai proposed that state and local laws should be preempted if they are to conflict with the federal policy of letting ISPs loose. The argument behind this proposition is that local governments do not have the power over broadband internet service as it is an interstate service and local policies would in such a way subvert the federal policy.

On August 20th, New York Attorney General Barbara D. Underwood released an 86-page brief asking the U.S. Court of Appeals for the D.C. Circuit to reverse the FCC’s RIFO. Attorney General Underwood also heads a group of 23 Attorney Generals in the lawsuit against the FCC mentioned above. 

“A free and open internet is critical to New York – and to our democracy. By repealing net neutrality, the FCC is allowing internet service providers to put their profits before consumers while controlling what we see, do, and say online. […] As we detail in our brief filed today, the rollback of net neutrality will have a devastating impact on millions of New Yorkers and Americans across the country, putting them at risk of abusive practices while undermining state and local regulation of the broadband industry. We’ll continue to fight to protect consumers’ right to a free and open internet,” said Attorney General Underwood.

The brief itself is focused on two particular points: one is that “the FCC’s order is arbitrary and capricious because it puts consumers at risk of abusive practices by broadband providers, jeopardizes public safety, and more;” and the other is that “FCC’s order unlawfully purports to preempt state and local regulation of broadband service.”

“The Order identified no such mandate, and instead relied on a purported federal policy of deregulation unmoored from any specific statutory command. But as this Court held in Comcast Corp. v. FCC, policy alone cannot provide the basis for the Commission’s exercise of ancillary authority, and hence cannot support the Order’s attempt to preempt here. 600 F.3d 642, 658 (D.C. Cir. 2010). Nor can the Commission rely on conflict preemption to support the Order,” the brief reads.

Basically, the brief argues that the FCC is too careless in believing that Big Telecom corporations will refrain from “harmful practices” even if they aren’t forced to, and even if the actual RIFO is otherwise lawful, the brief argues that the FCC has overstepped its authority by preempting state and local regulations.

Opinions 

The topic of net neutrality was well-represented all over social media, considering #netneutrality hashtag. Attorney Generals, such as MA’s Maura Healey, NY’s Barbara Underwood, and CA’s Xavier Becerra expressed their support of the 2015’s net neutrality rules.

Bernie Sanders expressed his support as well.

I’m glad to hear 22 state attorneys general and the District of Columbia have filed a brief to overturn the FCC's disastrous decision to repeal net neutrality. This fight is not over. https://t.co/c71y3kHXPU

— Bernie Sanders (@BernieSanders) August 21, 2018

On the other hand, for some the option of imposing more government control was hardly better.

So we are supposed to trust the government? I work for a telco, and I place way more faith in my executive management team than anyone in the swamp. We have to answer to our customers, you have to answer to no one.

— Jesse Gilbert (@JesstersDead) June 11, 2018

We HAVE a free and open internet. What you want is CONTROL.

— Facts Not Feelings (@FactsNotEmo) August 21, 2018

And in the same time Mr. Pai himself was busy climbing cell towers.  

Whew! Climbed to the top. Thanks to @NATEsafety, EasTex Tower, and SBA for letting me get a literal bird’s-eye view at the top of this 131-foot cell tower. Wireless infrastructure is essential for mobile broadband services; great to see firsthand what it takes to make it happen. pic.twitter.com/EpXgrICgLQ

— Ajit Pai (@AjitPaiFCC) August 21, 2018

All this is happening while Verizon continues to throttle down Californian firefighters’ connection speed putting lives and property of innocent servicemen and taxpayers at risk, and the other arbitrarily better option is to trust the government with public trust rating of 18%.

Conclusion

All in all, the issue of net neutrality rules isn’t closed yet and the fight goes on. What we have on our hands right now is the RIFO allowing Big Telecom to squeeze extra profit from people and internet companies for better, or maybe “not worse” connection speed; pending lawsuit challenging the RIFO and calling FCC to roll it all back to the Open Internet Order of 2015; and state-level efforts to protect net neutrality despite the Commission’s attempts to preempt them from doing so.

It isn’t clear by any means if the RIFO is to be reversed, just as it isn’t clear if the FCC will succeed in shutting down states’ initiatives to regulate ISP’s. The US has a long story of corporate lobby impacting federal legislation and the net neutrality case may become yet another entry on this list of shame.