As we reported last week, a U.S. Court of Appeals upheld the Federal Communications Commission’s legal authority to implement and enforce Net Neutrality regulations, a landmark victory for the open Internet movement. With it the FCC has had its reclassification of broadband service as a public utility affirmed, and we now officially live in an age where Internet (like water, power, and phone service) is a publicly regulated service. So has anything changed?
The ironic thing about the entire fight over Net Neutrality is that the problems the regulations were conceived to battle, arbitrary network throttling, prioritized service, blocking traffic, have already been conceded by the broadband industry, with almost every ISP moving on to bigger and better (and not to mention far more complicated and convoluted) ways to manage Internet traffic the way they want.
What this means is after years of battling we finally have the regulatory structure in place to keep the broadband service providers from doing the things they were doing five years ago…practices they’ve long given up in favour of other, more nebulously ethical practices that fall outside the purview of the FCC’s rules.
Now one might argue that the last five years have been necessary to get the broadband industry to evolve into what we see today, and to that end, I suppose Net Neutrality has served its purpose. Without this fight we might very well have seen the establishment of a two-tiered Internet with fast and slow lanes, where the most costly traffic (like Netflix) and the least profitable traffic (like the lowest tiered service plan) are throttled, blocked, or otherwise “managed” to make room for those who paid for priority service.
But of course if you’ve been following the Net Neutrality saga over the last several years, you’ll know doubt note the tongue in cheek irony of that last statement, for with zero-rating, sponsored data, and other such efforts not currently regulated by the recently upheld Net Neutrality standards, broadband service providers have achieved relatively the same thing, just in an ostensibly more consumer-friendly way.
Consider this: Under Net Neutrality regulations carriers aren’t allowed to arbitrarily favour any traffic over others, so instead of doing that, they made some data traffic free to the user (zero-rating), achieving the same goal of driving users to certain content or services, but with a complete end-around of the FCC’s rules.
Or this: Under Net Neutrality regulations carriers are not allowed to arbitrarily throttle data speeds, so instead they offer services that contain opt-out provisions about throttling, so consumers tacitly agree to have their data speeds slowed in order to access the free content or services they desire. Again, a complete end-around.
Or this: By the FCC’s regulations service providers are not allowed to block any content, so instead carriers have devised a way to have content “partners,” who again offer content or services free to the consumer, whereby all other non-partners are left out in the cold. Not blocked, to be sure, but not equal either.
So while we might see the broadband industry follow through on its threats to bring this fight to the Supreme Court, I happen to think they learned their lesson from Verizon’s ill-advised actions the first time around, where such threats and lawsuits only resulted in more regulations, not less, and that given the fact the industry has already found FCC-approved workarounds to the regulations, that maybe it’s time to leave well enough alone. So is this a victory for Net Neutrality and the fight for an open Internet? I’m not so sure.