The FCC's "Restoring Internet Freedom" order demolishes net neutrality

In December 2016 President Trump appointed Ajit Pai as chairman of the FCC. Upon accepting the position Pai declared: "We need to fire up the weed whacker and remove those rules that are holding back investment, innovation, and job creation." A little under a year later Pai is making good on his promise with a new order entitled "Restoring Internet Freedom" to be put to a vote by the Republican-controlled FCC Board in mid-December. The order is set to dramatically repeal Obama's net neutrality regulations from 2015.

The net neutrality debate is fundamentally one about regulation. How far does the government need to step in to make sure internet service providers are treating all internet traffic equally?

The 2015 regulations were clear and straightforward: No broadband provider can block lawful content, no broadband provider can throttle specific content or services, and no broadband provider can accept fees from a service for prioritized speeds.

The other big Obama-era change was to reclassify the internet as a public utility instead of an information service. This meant the government could apply a firmer regulatory hand on internet service providers, in the same way public utilities such as telephone services and electricity are managed.

The new FCC order repeals all those regulations, allowing ISPs significant free reign to manage their business however they see fit. This means there will be no ban on throttling or blocking internet traffic. The only requirement imposed by the new FCC order is one of transparency. So ISPs will have to publicly disclose any prioritization of content to their customers. The onus will then be on the customer to read the fine print and make their own decisions as to whether they want to give their business to that service provider.

The FCC claims this new order will promote competition, "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."

The free market will prevail, and sort itself out. Or will it?

The reality of broadband in the United States suggests a different picture altogether, as the majority of Americans live in regions where they have literally no choice in internet service provider.

According to an FCC study from 2015, less than one quarter of Americans had access to the choice between two or more ISPs delivering broadband speeds. In a country where over 75 percent of people are stuck with only one decent broadband supplier you would think it dangerous to allow that one supplier absolute unregulated control of its service.

Give the people what they want?

Earlier in 2017 the FCC issued a public call for feedback on the current net neutrality regulations in an effort to be transparent in regard to its ultimate decision. The process was flooded with bots, both for and against net neutrality. The majority of the estimated 21.8 million comments were identified as spam allowing Pai to essentially dismiss the entire exercise.

An analysis of the FCC responses that removed duplicate comments and focused on unique submissions from individuals came to a striking conclusion. Over 98 percent of unique comments supported the current net neutrality regulations and were against Pai's new plan for repeal.

Major tech companies have also come out against Pai's new order. Facebook, Google and Netflix have all signaled strong support for new neutrality.

In another strange twist, a recently published statement from New York State Attorney Eric T. Schneiderman suggested the FCC has been stifling his office's attempts to investigate the sources of those behind the mass spamming of the comment process.

"We made our request for logs and other records at least 9 times over 5 months: in June, July, August, September, October (three times), and November," writes Schneiderman.

"If law enforcement can't investigate and (where appropriate) prosecute when it happens on this scale, the door is open for it to happen again and again."

Stifling innovation

The big argument Pai often makes against net neutrality regulation is that it deters investment in broadband infrastructure and stifles innovation in the sector. The new FCC draft order claims that since the 2015 regulations were imposed, "broadband investment has fallen for two years in a row—the first time that that's happened outside a recession in the Internet era. And new services have been delayed or scuttled by a regulatory environment that stifles innovation."

This in itself is a reasonably debatable statement. Pai's claims refer to several studies backed by the telecom industry, but some analysts question those conclusions. On the other hand a study from pro-net neutrality organization The Internet Association found that investment in the sector has actually continued to increase since the implementation of the 2015 regulations.

Sure, there may be debate over the numbers but it is worth asking the question – is financial investment the right way to be measuring the success or failure of these FCC regulations?

Does it even matter if net neutrality regulations did slow the rate of growth in the sector? The primary concern here shouldn't be in protecting the financial interest of internet service providers but rather it should be protecting the rights of citizens in accessing free and fair internet.

As the internet becomes ubiquitous in our lives it feels a little absurd to not be taking it seriously as a public service. With more and more IOT devices connecting our homes, and media being accessed through streaming services, it doesn't feel strange to consider the internet as akin to a basic domestic resource, alongside electricity or gas. After all, the UN has declared that internet access is a human right.

This new FCC order, which is likely to easily pass at the FCC's next Board meeting in mid-December, is not just a weakening of current internet regulations but a dramatic dismantling. It's a giant deregulatory move by the FCC and is set to define the landscape of the internet for the coming years. Whether this turns out to be positive or negative, time will tell, but this is certainly no small regulatory change.

Read the full, over 200-page, draft order from the FCC here.