As Americans wait to see whether net neutrality can gain enough support among lawmakers to invoke disapproval via the Congressional Review Act, individual states are not waiting — several are working on state laws to maintain net neutrality within their own borders.
In December 2017, under the chairmanship of Ajit Pau, the FCC voted 3-2 to remove net neutrality protections by rolling back its earlier Obama-era classification of ISPs as telecommunications service providers (and therefor under FCC purview) to the common carriers as they had been previously classified. This has now happened. It simply means that existing FCC rules can no longer be applied to ISPs because they are not telecommunications services. This ruling won’t come into effect until April 23; that is, 60 days after publication of the ruling in the Federal Register.
In the meantime, California has now joined the number of states attempting to preserve local net neutrality regardless of federal preferences. California state senator Scott Wiener has introduced SB 822, a comprehensive proposal that would prevent ISPs from blocking websites, throttling users’ services or introducing paid priority services within California. In some ways this new bill imposes even stricter net neutrality than that being dismantled by the FCC, by, for example, imposing conditions on the practice of ‘zero rating’.
Coincidentally, the communications regulator in the UK, OFCOM, this month announced investigations into service providers Vodafone and Three. Vodafone operates a zero rating option called Vodafone Passes. “Our Passes allow customers to access their favorite content without fear of running out of data or attracting out-of-bundle charges,” says a Vodafone statement. “They are open to any content provider of video, music, chat and social. Twenty-two content providers have signed up so far, ensuring Vodafone customers can enjoy the widest selection of worry-free access to content across the industry.”
Opponents of net neutrality claim this is good for the consumer, effectively providing free bandwidth to the user. Proponents suggest it can starve new and smaller websites of the visitors they need.
In the U.S., AT&T offers a sponsored data program that is similarly zero rated on data usage. It seems, however, that the only services actually zero rated are owned by AT&T — such as DirecTV. This gives DirecTV a huge advantage over rival services such as Hulu and Sling, since potential customers are more likely to use the service that has a zero data cost to them.
This is the whole net neutrality argument writ small. Large, established organizations can afford to starve new innovative organizations of internet traffic by paying a premium to the service providers; and will always — in a completely free market — be able to buy more of the available bandwidth.
Knock-on concerns are that in order to guarantee bandwidth availability to the large premium-paying customers, it might be necessary to rein back availability to ordinary users — and in order to encourage those ordinary users to pay more for their bandwidth, there will be a temptation for providers to throttle what is already available.
The difficulty in policing net neutrality is that lawmakers recognize that some lee-way for ‘throttling’ (in the form of traffic management) will always be necessary. Europe’s net neutrality laws require that any such traffic management must be ‘transparent, non-discriminatory and proportionate’.
OFCOM has promised an update of its investigation into Vodafone in June, and it’s not possible to predict the outcome. Vodafone claims that its Passes service does not generate any bandwidth throttling, and indeed guarantees full service to the consumer. This may be true with just 22 signed up content providers; but may not necessarily be true with 200 signed up content providers.
In California, Senator Wiener’s proposal solves this problem, not by banning zero-rating outright, but by allowing it only for whole classes of content provider. In the AT&T example, AT&T could continue to zero-rate DirecTV only if it also zero-rates all similar content providers including Hulu and Sling.
Without doubt, SB 822 is one of the strongest net neutrality bills yet seen; and it will undoubtedly be disliked by the ISP providers. Jamie Davies, writing in Telecoms.com, considers net neutrality to be a heavy-handed approach to bandwidth problems. “The telcos have to be given the opportunity to make money,” he writes. “If the telcos are making less money, they are spending less on tackling the increased consumption of data. This is a net loss in the long-run and we do not think this is a nuance of the argument which has been considered by Weiner and his army of preachers.”
SB 822 may never happen. It may not be necessary if the Congressional Review Act can be used to overturn the FCC decision; or it may fail to get enough votes in California. Ironically, however, the FCC won’t be able to stop it. Back in December, the FCC barred states from adopting their own net neutrality rules — however, it will not be able to enforce its own rule.
“While the FCC’s 2017 Order explicitly bans states from adopting their own net neutrality laws,” writes Barbara van Schewick, Professor of Law at Stanford Law School, “that preemption is invalid. According to case law, an agency that does not have the power to regulate does not have the power to preempt. That means the FCC can only prevent the states from adopting net neutrality protections if the FCC has authority to adopt net neutrality protections itself.”