Net Neutrality: Unpacking the Divide in Regulation of the Internet

-- By KifayaAbdulkadir - 17 Mar 2022

Introduction

It has been almost two decades since the concept of network neutrality was introduced into common usage in debates on internet regulation. While concern about net neutrality already permeated through writings of open-internet advocates such as Lemley and Lessig, it was further articulated that network neutrality and subsequently internet innovation as an end can be achieved by a non-discrimination rule that would ensure a level playing field among internet applications. This general framework has been widely endorsed by net neutrality advocates but has nevertheless faced attacks from proponents who argue that less regulation, vertical integration and prioritization of internet traffic might be beneficial. Net neutrality is essentially the notion that internet service providers should treat all data on the internet equally and not discriminate based on the device, content, user, platform, application, or device. The foundation of this concept is a free and fair internet with the obligation on service providers that access to data and speed of all traffic on the internet be the same across the board. Preserving net neutrality has however been a battlefront in discussions on the future of the internet. While other regions such as Europe, have managed to establish regulations compelling internet service providers to treat all internet data and users equally, implementing such measures in the US has been an uphill battle. In 2018, the Federal Communications Commission repealed the net neutrality rules, only 2 years after it was approved and since then any efforts to implement these policies at even a state level has been met with pushback. Why is this principle such a heated controversial issue?

Network Neutrality

At the heart of this debate is whether common carriage regulations should be extended to internet access services. One of the pertinent issues raised by adherents of net neutrality is that tiered access that creates internet fast lanes and slow lanes leads to discrimination in content delivery.

The FCC’s position during Obama’s presidency was that ISPs were a telecommunications service with non-discriminatory responsibilities of a common carrier. However this was reversed during Trump’s rule in 2017 on the flawed logic that ISPs were actually information services and not telecommunication services because they carried content and should therefore be unregulated. Since then it has been a battle of whether ISP’s are information services or telecommunication services. The Telecommunications Act differentiates between telecommunications services, which are bound by the rules of common carriage and information services which were not.

Common Carriage

The concept of common carriage is not new and even predates the advent of the internet. It arose from the English common law concept of the ‘duty to deal’ which was that a traveler could not be discriminated against using the ferry to cross the river, simply because it was a public utility. As civilization continued and technology developed, the concept advanced with it. In 1860, the Pacific Telegraph Act was signed which provided that telegraph messages should be impartially transmitted in order of their reception. The idea behind this was because the telegraph had become an essential means of communication, access should be open to all. Once the telephone was developed the principle was carried along.

The rule throughout history has been that such services of social value being publicly offered and that meet the criteria are to be considered common carriers and thus fall under regulation. Why then should ISP’s and the internet in general play by different rules? As it currently stands, the common carrier classification as found in Section 201(b) of the Telecommunications Act is ‘any person engaged as a common carrier for hire, in interstate or foreign communication by wire or radio or interstate or foreign radio transmission of energy.” Granted, at the onset of the internet, ISP’s may not have been a widely used public commodity. However in this current day and age, it has become an essential means of communication and does meet the classification of a common carrier.

No doubt the disagreement on whether ISP’s qualify as common carriers is purely motivated by profit interests. The crux of the arguments fronted by opponents of net neutrality are that allowing different internet service providers leeway to pursue routing of traffic and vertical integration would in fact help competition. Concern has been expressed that imposing regulations with regards to net neutrality would deter investment in facilities. This would not only hinder advancement in the technology but also the deployment of the networking facilities to larger areas in order to reach more people. However an unmoderated network, one that advances principles of discrimination, will harm consumers more and ultimately lead to the decline in the services being rendered.

Conclusion

It is evident that elevating network neutrality into a regulatory mandate is not without legitimate and concerted criticism that it can harm competition in the industry. The ultimate question however is what should be prioritized when faced with competing interests of equality and non-discrimination versus innovation and competition. When faced with such diametrically opposed concerns, the moral and logical decision should be what benefits the consumer most and that is free and fair internet access. Giving telecommunication companies the power to determine the consumption of the content depending on location, money and power goes against the fundamental principles of equality.

The unfortunate reality is that throughout the history of the internet, these companies have demonstrated time and time again that they cannot be trusted with little or no regulation. It is not contestable that companies are simply profit making enterprises with little regard for the public interest. It therefore should not be beyond the realm of reason that giving network providers free reign to discriminate content passing through their systems would be imprudent. And in all this, the consumer will suffer the greatest consequence.

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