Monday, June 11, was the first day of the end of the open internet. It was the day that the Federal Communications Commission’s repeal of the Obama-era network neutrality rules became official, a move piloted by FCC Chairman and Donald Trump appointee Ajit Pai. In an op-ed Sunday on the technology news site CNET, Pai defends the FCC’s decision to rescind the old system, which prohibited internet providers from slowing down or speeding up access to individual websites. Under the new rules, internet providers will be allowed to do whatever they want with their network traffic, including blocking access to websites or charging websites a fee to reach users faster. Pai’s Orwellian argument is that the old way was not, in fact, protective of an “open internet,” and that the new way is.
In his op-ed, Pai insists that the internet will now be protected as a place “where you are free to go where you want, and say and do what you want, without having to ask anyone’s permission.” That may be true for large internet providers like Comcast, which will now be able to throttle or censor traffic on its networks however it wants, but it’s not true for most U.S. internet users, who generally have few, if any, options to take their business elsewhere.
The FCC’s new policy specifically removes the previous requirement for internet providers to treat all activity on their networks equally, meaning Verizon or AT&T couldn’t offer faster speeds to the New York Times over your local newspaper’s website, ensuring that no company or viewpoint could be privileged or censored based on who was willing to pay more for priority access to users. Now, all internet providers need to do is write in their terms of service that they reserve the right to do whatever they want—if they’re transparent that they might throttle your internet connection one day, regulators won’t stop them from doing it. Pai says “this information will allow consumers to make an informed decision about which internet service provider is best for them and give entrepreneurs the information they need as they develop new products and services.” But the truth is that most Americans have no more than one, maybe two, choices when it comes to high-speed internet. If your internet provider is blocking access to some websites and you don’t like it, you very well may have nowhere else to go. And even if you do have a second option, they might both have the same or similar policies. (If Comcast is throttling, why wouldn’t AT&T too?) And it’s the internet providers that stand to win the most from this scheme, since they’re now able to collect money from subscribers who pay to get online and from websites that are willing to pay extra to reach users faster.
But this is nothing to worry about, Pai implies, since the internet rules give the Federal Trade Commission the power to “to police internet service providers for anticompetitive acts and unfair or deceptive practices.” Again, he’s wrong. Yes, the new rules do give the FTC the power to punish companies that deceive consumers, so if an internet provider doesn’t tell you in the fine print that it might one day slow down access to a website that can’t pay up, it might face a fine. But this doesn’t stop internet providers from acting up in the first place. And it’s not even clear that the FTC has jurisdiction over internet providers, since the agency is specifically prohibited from enforcing its policies against phone companies. Two years ago, the 9th Circuit Court of Appeals even interpreted the prohibition against the FTC policing common carriers as applying to other services that phone providers offer, and since it’s common for major phone companies like Verizon and AT&T to also provide broadband services, it’s unclear that the FTC will be able to do much to stop internet providers from behaving badly. And besides, the internet is a network of networks, and while the FTC has plenty of brilliant technologists on staff, it’s incredibly difficult to investigate where the cause of a slow internet connection originates. As Terrell McSweeny, former FTC commissioner, put it last fall in a statement to the House Judiciary Committee:
Absent clear rules, the detection of discriminatory conduct is costly, difficult, time-consuming, and hard to remedy. For example, let’s say that you are watching streaming video and your stream becomes slow or grainy. Is that caused by intentional data discrimination by your ISP? Or might it be a server issue related to the content provider? Perhaps a spotty Wi-Fi connection? Or maybe something else entirely? How would a typical consumer know? How would the FTC?
Pai continues by noting that internet providers will have to be transparent about their network-management practices by posting information online, either on their own websites or on the FCC’s. When was the last time you went to the Comcast Xfinity website to check its policy on internet speeds? It’s just not realistic to think that most users will read these companies’ transparency reports, and even if they are that proactive, companies may articulate the policies in jargon that most consumers are unable to understand anyway.
To help drive his argument home, Pai notes that the new rules will help the little guys—small, local internet providers that don’t “have the means to withstand a regulatory onslaught,” bolstering the assertion by quoting a single small internet provider in Vermont, VTel, that told the chairman that regulating the internet like a phone company—that is, making sure that internet companies are treated like the necessary utility like they are—doesn’t incentive VTel to invest in its network, and that the current FCC gives VTel optimism about the future. OK, that’s one company. But last year, about 40 ISPs—not the big players like Comcast and Verizon, which are against net neutrality protections—wrote to the FCC to say that the previous open-internet rules haven’t hurt their business or discouraged them from expanding and improving their networks at all. And in April, the trade group INCOMPAS, which represents many smaller telecom companies throughout the country, filed a petition to appeal the FCC’s net neutrality repeal, arguing that the new net neutrality rules give the big internet providers the upper hand. “Net neutrality has always been critical for small businesses and start-ups to compete in the internet age,” said Dane Jasper, the CEO of Sonic, a smaller internet provider based in the Bay Area. “When the FCC eliminated those protections, it opened the door for large, incumbent ISPs to use their gatekeeper position to put a stranglehold on innovation and competition.”
It’s not like the old net neutrality rules prevented the major companies from investing and expanding their networks either, as Pai has repeatedly claimed. In fact, after the net neutrality rules were passed in 2015, Comcast, Verizon, and AT&T all told their investors in public calls that they’ve since expanded investment in improving and building out their networks. If the net neutrality rules were supposed to deter their investment priorities, those companies just didn’t get the memo.
The internet is how we connect with friends and family. It’s how we know what’s happening in our own backyards and how we find where local businesses are and how to get there. It’s how we learn about what’s going on in the world and how we organize for political change when something’s wrong. American internet and technology companies are now the most powerful companies in the world, largely because they were given the chance to succeed in an open playing field and the FCC fined companies when they acted in nonneutral ways. But Pai’s new rules give the big internet providers the power to choose which companies get the upper hand.
If Yelp loads faster than the website of your favorite local restaurant, Yelp has an extra advantage. If a local-newspaper site takes a few seconds longer to load than Fox News or CNN, readers may be less inclined to visit it. Far from making the internet more open, the FCC’s new rules threaten to make the internet more boring, more concentrated, and less diverse. New startups and businesses that want to offer innovative new products or services may not even get the chance to worry about the regulation Pai has made into a boogeyman because they can never afford to reach users as fast as the incumbents can.
But advocates, activists, politicians, millions of internet users, and business leaders have been telling Pai that for years, and that hasn’t stopped him. Now lawmakers in Congress are trying to undo the damage he’s done. It’s not easy to do anything in Congress, and the Republican majority may well preclude the effort to restore the open-internet rules that passed through the Senate and now have to make it through the House. There will also be challenges in the courts. None of this will be easy as people become used to a web without net neutrality, especially if the changes are as subtle as slowing down a website just a few seconds. No matter how the battle plays out, proponents of net neutrality will have to be clear about what an “open internet” really means—and push back against Pai as he tries to redefine the debate.