' The Danger of “Just & Reasonable” Net Neutrality Rules: The Potential Toothlessness of the FCC’s New Rules | MTTLR

The Danger of “Just & Reasonable” Net Neutrality Rules: The Potential Toothlessness of the FCC’s New Rules

On February 26, 2015, proponents of the open Internet celebrated the Federal Communications Commission’s vote to reclassify broadband Internet as a public utility and approve new net neutrality rules. The goal of the FCC’s vote is to protect Net neutrality by requiring Internet service providers (ISPs) to treat all Internet traffic equally. Although increasing regulatory oversight of the “last mile” of the Internet is certainly a step in the right direction toward a true open Internet, this is not a clear victory for Net neutrality advocates.

On March 12, 2015, the FCC released a declaratory ruling and order that contained the FCC’s newly adopted Net neutrality rules. Because the FCC voted to reclassify broadband Internet as a public utility, all ISPs are now subject to regulation under Title II of the Communications Act of 1934. This effectively places ISPs under the same strict regulations as telephone networks. Accordingly, the document outlines strict rules for Internet providers that are designed to preserve an open Internet.

The Net neutrality rules help ensure Net neutrality by explicitly prohibiting ISPs from: 1) blocking legal content, 2) throttling, and 3) creating Internet fast lanes (accepting fees for priority treatment).

While these are all great things, Net neutrality advocates should hold off on celebrating with the top-shelf champagne because the new rules include a standard of review that can greatly undermine their robustness.

The rules require ISPs’ conduct to be “just and reasonable.” This gives the FCC the power to decide on a case-by-case basis whether a ISP has overstepped its bounds or to exempt its actions as “just and reasonable”.

The FCC itself admits that the terms just and reasonable are broad, “inviting the Commission to undertake the kind of line-drawing that is necessary to differentiate just and reasonable behavior on the one hand from unjust and unreasonable behavior on the other” (p. 127). The wording leaves the standard of review open to interpretation. It appears that the effectiveness of the Net neutrality rules in maintaining an open Internet rests on the FCC’s willingness to affirmatively act and declare an ISP’s actions as unjust and unreasonable, and thus illegal.

On the upside, the new net Neutrality rules give the FCC the powerful tools needed to effectively enforce an open Internet. However, these tools can only be effective if the FCC actually uses them. Although the rules do ban content blocking, throttling, and paid prioritization, there are numerous other ways that ISPs can violate net neutrality. For example, although the new rules also prohibit ISPs from using “reasonable network management” to charge consumers more, AT&T seems to be doing just that without any FCC condemnation by using network management to throttle its grandfathered customers with unlimited data plans after they have used 5 GB.

The new rules fail to provide consumers with a blanket shield against Net neutrality violations. Although ISPs can no longer engage in content blocking, throttling, and paid prioritization, it seems inevitable that ISPs will seek other ways to increase profits that may not comply with the open Internet concept. In order for the new rules to have actual bite, the FCC ought to broadly define the terms “unjust” and “unreasonable” and actively fight to keep Net neutrality alive and well.

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Eve Nguyen is an editor on the Michigan Telecommunications and Technology Law review, and a member of the University  Michigan Law School class of 2016.

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