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Net neutrality: The idea that internet providers should enable equal access to all (legal) content and applications, regardless of source or nature. It is a principle of open networks and open access. To evangelists it is the core tenet that preserves users’ rights to free communication without which the open internet would not exist.

Net neutrality comes from the old legal concept of “common carriage,” developed to ensure that the public had access to fundamental services that use public rights of way. The national highway system and utilities like water and electricity are regulated under this concept; so is the phone network. Today, internet access is effectively a fundamental service, one that huge swathes of the world rely on, but debate over whether companies providing internet infrastructure should be so regulated has proven stubborn and politically charged.

When internet service providers escaped the clutches of FCC Title II ‘common carrier’ classification this spring, they slipped the regulatory noose preventing paid prioritization and protecting net neutrality. Section 202 of Title II prohibits common carriers from “any unjust or unreasonable discrimination in charges, practices, classifications, regulations, facilities, or services.” It prevents internet providers from discriminating between the data coming from different websites and charging some content providers — like Netflix — to get their data through to customers in an internet “fast lane.”

FCC Chairman Ajit Pai has said that the regulations were heavy handed and politically influenced. Perhaps, but what they did was set out some key rules that internet providers needed to follow: no blocking of sites and apps, no throttling the speed of sites and apps, and no paid fast lanes. These rules applied to wired and wireless internet service providers. That hardly seems controversial. An environment in which providers could favor their own services, or whoever was paying them extra, and block or throttle the content from competitors is not an especially open or dynamic market.

It is Pai’s grand rejection of the rules that looks more ideological. Pai insists that removing regulations around internet providers will have no negative impacts to speak of and will at once attract infrastructure investment, provide fair treatment to providers like Netflix, and not only improve savings for customers but even counter the trend of worse internet access in low-income and rural areas. However, there is little evidence to back those claims, and although there has been plenty of lobbying around the issue, there is also little evidence the Title II regulation was hurting internet providers to begin with. None of the publicly traded internet service providers have reported Title II having negative impacts on investors and many have upped investment, Altice, for example, is already upgrading all its networks, despite the supposedly stifling FCC regulation.

The battles and debates around net neutrality are not new, but they have become heightened and more politicized. The short history of net neutrality controversies also suggests that the risks of internet providers discriminating against certain content are more real than the hypothetically damaging consequences of FCC rules. In 2007 Comcast was caught interfering with BitTorrent traffic (though they said it was simply traffic management) and last month it looked as though Verizon might have capped streaming speeds for some Netflix customers. Verizon said they were doing network testing. Now, the power to set terms is shifting back into the hands of internet service providers and accountability is slipping away.

In a largely symbolic stand, on August 7 ten members of Congress submitted an official comment on Pai’s proposal. The move is ideological and political — all ten representatives are Democrats who helped to craft the previous legislation — but it is also correctly calls out Pai’s proposal for (willfully) misinterpreting the services provided by internet service providers. Removing the Title II regulation treats internet service providers as though they are the ones providing the services that users actually get from edge providers like Google, obliterating the distinction between the services that carry data and create it.

Internet service providers might not see themselves as utilities companies, but internet access has become a key service, and many would argue a right, for citizens. By removing prohibitions on data and content discrimination and prioritizing the market interests of internet providers, the current FCC is downgrading public interest. We will see if lawmakers or citizens continue to submit comments to Pai’s FCC, but with an even more Republican Commission on the horizon they unlikely have much influence protecting net neutrality in principle or practice.

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