Net Neutrality and the New Reality of Who Might Get Sued

Published: February 11, 2015

By now you have probably heard that Chairman Wheeler of the FCC is planning to call a vote at the end of February in order to reclassify broadband Internet under Title II of the Communications Act.

Many people are associating this reclassification as treating broadband networks as a utility, but that’s a little misleading and only the tip of the iceberg based on the extremely vague four-page release from the FCC last week.

The Suing Starts Here

Before we dig into the good, the bad, and the missing of the release, there is one thing that you need to know about.

Just before the announcement of the pursuit of Title II, the FCC voted to alter the definition of broadband Internet as being 25Mb download/4Mb upload, and that it would be the responsibility of the providers to upgrade their networks to meet that standard.

This meant that many of the networks that Internet Service Providers (ISPs) have built around the country would technically not qualify as a broadband network without drastic improvements in some cases.

That decision by the FCC is, more than likely, going to result in at least one lawsuit by the ISPs, but that will probably just be first of many to come.

The Good

Getting into the overall proposal that was released the day of Chairman Wheeler’s announcement, there are some good things that he must be applauded for trying to get instituted.

For example, the new rules being proposed as a part of this classification are no blocking, no throttling, and no paid prioritization. This means that the ISPs cannot prevent or slow down any legal content that one of their customers is trying to access.

It also means that certain content providers cannot pay the ISPs to have their data be given priority over other data – all of it must be treated equally.

The FCC’s purpose is to protect the consumers when it comes to communications systems. It is being stated that “the proposal would create a general Open Internet conduct standard that ISPs cannot harm consumers or edge providers” as a part of the new standard for future conduct.

RELATED: AV Nation Talks Net Neutrality at CI Summit ‘14

In part of the proposal that might be considered a bit of a farther reach, Chairman Wheeler sites that “the draft Order persuasively rebuts claims that Title III does not allow classification of mobile broadband as a telecommunications service.”

It was this that caught my attention the most as it brings mobile broadband into the conversation as a part of this reclassification. That might seem like a logical correlation to most of us, but it was later in the proposal that it was exposed as to why this action was being mentioned.

Under the section on “Reasonable Network Management,” Chairman Wheeler discusses that an ISP is free to perform network management, other than paid prioritization, as it sees fit.

He further went on to state that “the network practice must be primarily used for and tailored to achieving a legitimate network management.” The example given is “a provider can’t cite reasonable network management to justify reneging on its promise to supply a customer with ‘unlimited’ data.”

This is a clear declaration that throttling of mobile data is something that the FCC is going to target as a practice they seek to end.

The Bad

From the above, it seems like Chairman Wheeler listened to the millions of people that signed the online petitions to reclassify the internet as a utility under Title II.

However, not everything in this proposal was wine and roses. In particular there is one section that raised a massive red flag, for the AV industry in particular.

While the FCC is seeking broad protection for the content of the broadband networks, “[S]ome data services do not go over the public Internet, and therefore are not ‘broadband Internet access’ services subject to Title II oversight (VoIP from a cable system is an example…). The Chairman’s proposal will ensure these services do not undermine the effectiveness of the open Internet rules.”

I will freely admit that statement is slightly vague in that it at no point states exactly how the proposal will ensure that the services don’t undermine the effectiveness of these new rules, but it definitely causes some great concern.

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