Net Neutrality Hostilities Resume

The battle over Net neutrality has been reignited, dashing the hopes of those who thought it might be settled in February, at least in part, when the United States Federal Communication Commission is expected to make its ruling on the issue.

Democratic members of congress led by Sen. Patrick Leahy on Wednesday introduced the Online Competition and Consumer Choice Act of 2015.

The act’s provisions are in line with invoking Title II of the Communications Carrier Act, a plan that President Obama endorsed in November.

“The commission is leaning towards utilization of Title II, though there are still numerous open questions,” said Doug Brake, telecom policy analyst at the Information Technology & Innovation Foundation.

That’s anathema to Republicans, who are looking at several ways to fight any Net neutrality requirements, including possibly tabling their own legislation and possibly slashing the FCC’s already strained budget.

FCC chairman Tom Wheeler on Wednesday announced the commission will vote on an official Net neutrality policy on Feb. 26, in a public interview at CES 2015 in Las Vegas. However, he declined to be more specific.

The statement triggered a response from Meredith Atwell Baker, president and CEO of CTIA — The Wireless Association, who argued for the FCC to continue regulating mobile broadband under Section 706 of the Telecommunications Act.

Which Way Will the FCC Jump?

Many questions about the Title II option remain unresolved.

“Are we looking at an attempt at a flat ban on paid prioritization, or more of a standards-based approach?” ITIF’s Brake asked.

“There are lots of big questions about forbearance,” he told the E-Commerce Times. “What parts of Title II will the Commission try to apply? How deep into the network will the rules touch?”

Whether the commission will try to use Title II to give itself further oversight of interconnection deals will be a controversial issue, Brake said.

“Wheeler recognizes that there are situations where prioritization makes an awful lot of engineering sense,” Brake pointed out, “plus, a flat ban on discrimination, even under Title II, is a tenuous legal position.”

The FCC’s February ruling likely will include a presumption against paid prioritization, similar to its 2010 rules, he suggested.

It’s All a Muddy Mess

Meanwhile, the question of what really is at issue when it comes to Net neutrality remains unresolved.

The debate “has everything to do with a Netflix only being charged a flat fee for 35 percent of the Internet some evenings,” Cornelius Bond wrote in response to a Wall Street Journal piece.

“Netflix still has to pay their own ISP for the massive bandwidth they use,” countered Keith DeWees. “What Net neutrality ensures is that Netflix doesn’t have to bribe my ISP in order to let me access the bandwidth I’m already paying for.”

Netflix argues that fast lanes incentivize ISPs to allow network congestion so they can boost their revenues, and those who can’t afford to pay for the fast lanes will suffer.

Opponents of using Title II contend that regulating the Internet will cost consumers more — up to US$15 billion in new user fees, according to the Progressive Policy Institute.

Title II regulation would hamper job creation and economic growth, they argue. It would reduce capital investment by up to $45.4 billion over the next five years, charges a letter signed by 60 top tech companies.

The Only Sure Thing

Whatever the FCC decides, its ruling is sure to trigger a storm of protest.

“The FCC will adopt Net neutrality, probably under a Title II declaration, but then will be immediately challenged in court,” opined Mike Jude, a Stratecast program manager at Frost & Sullivan.

Congress “will likely pass something along the lines of no Net neutrality but [President] Obama will likely veto it,” Jude told the E-Commerce Times. “We are in the fourth quarter of the Obama administration, [and] I believe the administration will push for everything it can get, even in the face of certain litigation.”

Despite the Republicans’ dominance in Congress, he noted, the battle “will be played out in the courts.”