Day of action for the Internet unlikely to halt Title II reversal

The fresh tactics employed this week in the fight for Net Neutrality in the US will likely make little difference in a complicated situation. Leading internet players instigated a day of action, to protest the idea that the FCC is planning to remove Title II classification from its rulings and replace it with some kind of ISP voluntary terms and conditions. Others would prefer a new Act from Congress.

We know for sure that this won’t work and already with ISPs zero rating their own OTT services, and claiming they do not travel over the open internet, we have seen a cart and horses driven through the existing Title II legislation, with an FCC unwilling to police it.

The four attempts by Congress to introduce Net Neutrality legislation that we can remember (there were probably more) all fell by the wayside, although the Republican party is in a strong position to legislate right now. The chances are that any wording chosen by this Congress, would include allowing zero rating, and the rest of the world has taken that as their lead and tried to offer services with zero rating, even in parts of the world where it is expressly forbidden in legislation. The US always sets the example here.

What we do know is that as long as there are four national wireless carriers, and as 5G approaches, that competition will keep net neutrality in place. Where one operator offers an advantage to its own content, another will offer a similar advantage to their own content partners. And during a time of data caps the danger is more rife, so as data caps are being raised and unlimited data services are being pushed, there is less of a problem. The other issue that has been active in the market is a “connection” charge that most ISPs levied on Netflix prior to the Title II classification being enforced. As soon as Title II is lifted, it is likely we will see that introduced once again, and from there it is a short leap to the point where ISPs can block competitive traffic.

We know that the ideas of FCC chairman, Ajit Pai, just won’t work and all that is holding Net Neutrality in place is the Title II legislation

This week the industry group USTelecom, which represents ISPs across America, filed an application for an extension of time in regards to the FCC 2015 Open Internet Order. A statement said “We asked for a 60-day extension of time to file for Supreme Court review to give the FCC time to resolve its pending Open Internet rulemaking, which could alleviate the harms caused by reclassification and make moot some or all of our concerns. The best path forward for consumers, innovators and our connected economy is for Congress to adopt permanent net neutrality protections because, as we said in our challenge to the 2015 Open Internet Order, the FCC doesn’t have a clear legal mandate to regulate broadband internet access service as a Title II, utility-style service.”

In other words, USTelecom is going to put its complaint on hold for a couple of months, in case the FCC gets rid of Title II. Given that the complaint held out a faint hope that the US Supreme Court would squash Title II, and given the state of affairs at the FCC, the Supreme Court would have almost certainly declined to given an opinion while Title II was under review, so this stay of action makes little difference. In June last year, USTelecom lost its appeal against the 2015 ‘Open Internet’ order and it was this appeal that was going up to the Supreme Court.

As the rules sit, if the Supreme Court had backed the right of the FCC to impose Title II, USTelecom’s argument would have been dead in the water, putting it at a disadvantage.

We don’t see much chance that the new FCC chairman Ajit Pai will listen to the internet majors and will forge ahead with his ill-thought out plan to regulate using Terms and Conditions promises, which can be reworded at the drop of a hat.

As many as 80,000 other websites are supposed to have taken part in the day of action along with Google, Amazon and Twitter, posting banners, pop-ups and other messages to encourage internet users to resist the FCC’s proposed changes to net neutrality. Even Verizon, Comcast and AT&T came out saying they agree with the concept of net neutrality, insisting they are only opposed to the FCC’s method of regulation as being too heavy handed. Leaving title II in place under a benevolent FCC remains an option, especially since many of the sections of Title II classification were left out of the ruling.