The Federal Communications Commission (FCC) passed regulations last week that are designed to guarantee open, equal access to the internet – so-called “net neutrality.” Prof. David J. Tarrien, who has been interviewed in the media all around the nation on this topic, shares some of his thoughts with us. You can hear one of Prof. Tarrien’s recent radio interviews here, plus you can check other sources below.
Specifically, they prohibit internet service providers (ISPs) from blocking, throttling (slowing down the transmission of), or creating paid prioritization (fast lanes) to, the internet. The regulations apply to all providers of dial up, broadband, and for the first time, wireless, internet access. While the idea of an open internet as a place for free expression of ideas and innovation is not in and of itself controversial, government enforcement of that idea has been. There has been much discussion in the media and political forums about the proper role of government.
Proponents of the regulations say that the government is the best guarantor of and referee for net neutrality. They point to specific instances of purported bad behavior by the ISPs, such as Verizon blocking wireless access to Google Wallet in 2011 and Comcast slowing down the BitTorrent file-sharing website in 2008.
Opponents of the regulations object to the government interjecting itself into the free market. They state that this will stifle creativity and innovation in how internet service is provided to the consumer. They also state that the industry has done a good job of regulating itself, that specific instances like those above have not been repeated, and that there is no real threat that the scenarios that are ostensibly prevented will come about, because doing so would unnecessarily alienate client bases.
Legally, net neutrality has a history with roots in the 2002 decision by the FCC to identify internet service provision as an information service, like broadcasters, rather than a telecommunication service, like telephone service. Information service, because of its relationship to free speech principles, is harder for the government to regulate than is telecommunications services, which are seen more as utilities.
The FCC chose the information services designation to allow ISPs to develop their products and establish themselves competitively in the marketplace. Several years later, when the FCC felt that market space had been established it put forth its initial net neutrality regulatory scheme. This was challenged in the courts and in the DC Circuit appellate court decision from 2010, Comcast v. FCC and in its 2014 decision, Verizon v. FCC, the FCC was deemed to have exceeded its regulatory authority, largely because it was applying the rules to information services.
This led to the decision to put forth rules under Title II of the Communications Act of 1934, designating ISPs as common carriers providing a utility, for which there is a long history of successful regulation.
In the short term, it will mean very little; regulatory review and lawsuits will prevent the enforcement of the rules until summer at the very earliest and probably for much longer than that. Over the long term, it will depend on whether the courts accept the designation of the ISPs as a utility; regardless, this is undoubtedly not the last time we will hear about net neutrality.
WMU-Cooley Professor David J. Tarrien teaches Introduction to Law, Advanced Writing, Research and Writing, Federal Disability Law, Law of Cyberspace, Education Law, and Special Education Law. He is a national media expert on the topic of Net Neutrality.
David’s appearance on WXMI TV (FOX 17) in Grand Rapids
David’s appearance on WZZM TV (ABC) in Grand Rapids
David’s appearance on WFLA NewsRadio (AM 970) in Tampa
Michigan Radio Network
WDBO 96.5 (Orlando)
David’s appearance on Newstalk Florida (AM 820 News in Tampa and 1190 News in Orlando)
Steve Gruber Show (on 12 station in Michigan WJIM, WJRW, WKMI, WLBY, WBCH, WMKT-AM, WMKT-FM,WATT, WMIQ, WDMJ, WIAN & WKLQ)
Michigan’s Big Show (10 stations; WQTX, FOX47, WTKG, WKZO, WKBZ, WSJM, WMMI, WBRN, WJNL, WJML)
David’s appearance on WGVU in Grand Rapids
Michigan Big Show