Mega-Corporations Notch Win Against Consumers

Billshark promised to keep you updated on the progress in the fight for net neutrality. We are sorry to have to report, therefore, a major blow to the concept that all Internet traffic should be treated equally.

In a 200-page ruling released last week, the D.C. Circuit Court of Appeals sided with the Federal Communications Commission (FCC) in its fight against net neutrality, saying it had the right to allow the giant Internet service providers (ISPs) to slow or even block Internet traffic for profit.

Background

Under the Obama-era rules put in place by the FCC in 2015, ISPs were blocked from charging some websites or services more to ensure that their content would be delivered faster. Without regulations in place to prevent it, the behemoth telecom companies (Comcast, AT&T, Verizon, etc.) would be free to effectively throttle smaller ones, including start ups, ultimately putting them out of business. Some of the more popular web companies weighing in on the side of net neutrality include Google, Facebook, Mozilla, Reddit, Tinder, Etsy, and TripAdvisor, among many others.

The advent of the Trump administration brought a newly appointed chairman, Ajit Pai, a former lawyer for Verizon, and a new set of rules, or rather, lack of rules. The Obama-era rules said that ISPs must treat all traffic equally, and not give preference to companies with which they do business.

This concept is critical to maintaining fair access to all. For example, if large services such as Yelp or eBay were allowed to pay ISPs to have their sites delivered faster (known as “fast  lanes” vs. “slow lanes,” or in the vernacular of the telecoms, “paid prioritization”), that would put smaller services and websites at a disadvantage, since they couldn’t afford to pay those fees. Not only would their websites load more slowly, potentially frustrating visitors, but it would affect their ability to be found during Internet searches, because the search engines like Google give higher preference to sites that load quickly. Finally, the extra “pay to play” fees will eventually show up on consumers’ bills.

An important clarification: One commenter on this issue wrote: “I’d gladly pay more for faster Internet.” This is not the same concept as net neutrality. Different ISPs offer different upload and download speeds, as Billshark reported when unveiling our speed test. Delivery speed is based on each ISP’s particular infrastructure. In addition, slow uploads and downloads can also be impacted by your computer, your router, or other devices connected to the Internet. This is an infrastructure issue, not a net neutrality one. Net neutrality prevents ISPs from deliberately slowing websites that don’t pay extra for preferential treatment.

The ruling

While largely siding with the FCC over the consumer groups and 22 state attorneys general who had brought the suit, the court also ordered the FCC to better justify its repeal of net neutrality, but it left the repeal in place, calling opponents’ objections “unconvincing for the most part.”

At the same time, however, it also told the agency it could not issue a blanket order superseding states’ efforts to enact their own net neutrality laws.

“The Court concludes that the commission has not shown legal authority to issue its Preemption Directive, which would have barred states from imposing any rule or requirement that the Commission ‘repealed or decided to refrain from imposing’ in the Order or that is ‘more stringent’ than the Order,” the opinion reads. “No matter how desirous of protecting their policy judgments, agency officials cannot invest themselves with power that Congress has not conferred.”

This portion of the ruling is the lifeline net neutrality supporters are clinging to, because it allows the states to carry on the fight individually.

The future

More than three dozen states have passed or are considering their own versions of net neutrality, including California, which last year passed what was hailed at the time as a model net neutrality law that other states could follow. The U.S. Justice Department immediately filed suit to block the new law, and the FCC followed with a regulation barring states from passing their own laws.

Last week’s court ruling opened the way for California’s new law to take effect, and for other states to follow suit.

That does not, however, mean smooth sailing for the states, as the anti-net neutrality faction claims the Court’s order still allows the FCC to challenge net neutrality rules on a case-by-case basis.

The only way to settle this permanently would be for Congress to step in and pass a net neutrality law. Given the divided political reality on Capitol Hill, however, that isn’t likely to happen any time soon.

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