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Scrapping FCC net neutrality rules would be a mistake

Repealing net neutrality would result in the de facto concentration of internet control of revenue from accessible services into the hands of certain gatekeepers, undermining the open architecture that allows the free exchange of ideas.

HRI Supporters of net neutrality protest outside a Federal Building in Los Angeles, California on November 28, 2017. The activists gathered in protest of the Federal Communications Commission Chairman, Ajit Pai’s, plan to repeal the Obama era net neutrality regulations. Ronen Tivony/PA Images. All rights reserved.The announcement from the Chairman of the US Federal Communications Commission (FCC), Ajit Pai, of the FCC’s intention to repeal Net Neutrality rules is disappointing. It does not seem to be justified by any evidence that the current rules are not functioning properly.

 

The US digital market is thriving, net neutrality rules have not impeded operators from investing in their networks and there is strong support for the rules. Therefore, Mr Pai’s intentions are hardly explicable, either by the facts or by popular will – unless one considers the millions of comments made by bots and dead people that seem to oppose net neutrality.

To appreciate the importance of Net Neutrality policy, it is crucial to understand that Internet Service Providers (ISPs) can utilise Internet Traffic Management (ITM) techniques to shape data streams not only for legitimate purposes, but also to downgrade or block competing services, while favouring commercial partners.

Not all kinds of information and innovation are equally profitable from an operator’s perspective. It may be much more profitable to direct users towards merely consuming content and services provided by the operator’s integrated partners rather than allowing users to freely create competing ones. Therefore, vertically-integrated operators have a concrete incentive to orientate users’ internet experience towards the mere consumption of affiliated content and services, because their revenues are intimately intertwined with the revenues of their integrated commercial partners.

Not all kinds of information and innovation are equally profitable from an operator’s perspective. 

Importantly, undue blocking, throttling and prioritisation are not just theoretical possibilities. On the contrary, over the past fifteen years, a long series of cases, particularly in the U.S., have proven that operators with market power cannot resist the temptation to become internet editors, implementing abusive ITM techniques to disfavour competitors. A brief filed by Verizon in 2012 tellingly explained how the company intended to utilise what they called “editorial discretion”. Their argument was that “just as a newspaper is entitled to decide which content to publish and where, broadband providers may feature some content over others.”

Besides offering a clear example of what would happen in the absence of Net Neutrality rules, this statement from Verizon sounds rather peculiar, coming from an intermediary that benefits from safe harbour exemptions of liability, precisely because the company is regarded as a “mere conduit” that “must not select, alter, or save the material in the communications.”

Repealing Net Neutrality protections would make operators’ editorial discretion possible and all major operators would have strong economic incentives to take advantage of their position of internet editors. This would then result in the de facto concentration of internet control of the revenue stemming from the accessible services into the hands of these gatekeepers. This concentration of gatekeeping power undermines the open and decentralised architecture that allows users to freely impart and receive information and ideas, developing, accessing and sharing innovative products and services without restrictions.

The reason why Net Neutrality frameworks have been developed in so many countries is precisely because they act in the public interest. They not only safeguard the enjoyment of internet users’ rights but they support the capacity to innovate, without permission and on a level playing field.

The fact that Net Neutrality policies promote competition across the entire internet value-chain and provide equal opportunities for the development of new applications, services and business models has been acknowledged by virtually every stakeholder, apart from dominant ISPs.

The protection of Net Neutrality is central to guaranteeing the plurality and diversity of information and innovation. It would be very unfortunate to see that a country like the US, at the vanguard of internet openness for a long time, has decided to abandon this principle. And instead, to opt for policies that enable more concentration of control and revenue to be in the hands of few privileged corporations.

Comments on the decision from other contributors to the Human Rights and the Internet Series:

Christopher Marsden: I agree with Terrell McSweeny – this is a local US issue, so no change for Rest of World – in fact Tim Wu points out the draft Order is so egregious it will fall early under judicial challenge.

Michael Oghia: The FCC's move is disappointing though not surprising. What is more disappointing is seeing some of the assertions I made in March have actualized. It is still unclear, however, whether those in favour of regulation or those who oppose it will see their predictions come true. Bear in mind, though, that Congress has the final say on the proposed changes, which will be voted on in December. If someone does not support the FCC's recommendations, they should call their members of Congress and voice their opposition. 

Anita Gurumurthy: The move to roll back net neutrality in the US must be seen in a context where internet access is already not created equal... Revoking net neutrality guarantees and giving telecom service providers/internet service providers the power to control data streams is bound to lead to further distortions in the already wide disparities characterising the access experience. To favour certain content or block or throttle certain other would be tantamount to interfering with the very rationale of the Internet to create and promote information democracy...

About the author

Luca Belli is Senior Researcher at the Center for Technology & Society at FGV, Rio de Janeiro and Associated Researcher at Centre de Droit Public Comparé, Paris 2 University

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