Reminder: This Election Could Decide Net Neutrality

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Net Neutrality – hope you haven’t forgotten about it.

Currently, the FCC has the ability to determine whether the internet is classified as either an information service or a telecommunications service. If the internet is defined as an information service, then cable internet providers would not be regulated as common carriers. If they are not regulated as common carriers then the ISPs (Internet Service Providers) make the rules concerning who has access and what that access consists of. This is the Republican dream for controlling internet access.

Since the FCC was given the ability to determine how the internet is classified, then when the leadership at the FCC changes, then the classification of the internet can be changed from information service (Republican position) to a common carrier and thus regulated (Democratic position) and thus neutral in internet access.

Internet neutrality was an issue in 2016. When Republicans won the White House the majority of the FCC became 3 to 2 Republican and the change from the net neutrality of the Obama era came in December of 2017. Court cases have so far kept the change from being fully implemented by the ISPs such as Verizon.

A quick discussion of the current state of internet neutrality can be found at According to the article, net neutrality as defined under Barack Obama’s FCC, led by Tom Wheeler, was affirmed by the courts in May of 2017. Unfortunately in December of 2017, the Trump FCC reversed that stand and defined the internet as an information service.

From the article:   

Commissioner Ajit Pai was appointed Chairman of the FCC in January 2017. In response to his plans to eliminate net neutrality, there was a public outcry in support of net neutrality that was even greater than what the FCC had experienced in 2015. Despite this, Chairman Pai circulated his proposal for repeal in November 2017, and the proposal was passed in December 2017, overturning the Open Internet Order.

Currently there are:

  • NO rules preventing blocking of website, services, or content online

  • NO rules preventing throttling or slowing down of website or services online

  • NO rules preventing paid prioritization where broadband providers give preferential treatment to some websites and services over others 

What the article doesn’t say is that IF a Democrat is elected president and the FCC then becomes a majority Democratic commission, then can the rule be changed once again? According to an article on Ars Technica  the original decision in a case known as Brand X allowed the FCC to change the classification:

But the Supreme Court ruling in Brand X didn’t lock the FCC into classifying cable as an information service forever. Instead, Brand X allowed the FCC to classify Internet service as either an information service or telecommunications as long as it provided a reasonable justification. This allowed the FCC to subsequently change its classification decision multiple times.

Under US communications law, telecommunications is defined as “the transmission, between or among points specified by the user, of information of the user’s choosing, without change in the form or content of the information as sent and received.” It’s up to the FCC to decide whether that definition accurately describes broadband, and Republican and Democratic administrations have come to opposite conclusions.

The Obama-era FCC in February 2015 decided that both home and mobile broadband services were telecommunications, and it regulated the industries under Title II in order to impose net neutrality rules. The Trump-era FCC reversed that decision in December 2017, deciding that broadband isn’t telecommunications, and thus deregulated the industry. 

Brand X tied judges’ hands to such an extent that Circuit Judge Patricia Millett upheld FCC Chairman Ajit Pai’s net neutrality repeal despite calling his claim that broadband isn’t telecommunications “unhinged from the realities of modern broadband service.” Pai’s repeal of net neutrality rules could still be appealed to the Supreme Court.

So it appears that unless Brand X is somehow changed then the party in power has the ability to change the classification of the internet. As noted in the Ars Technica article, Justice Thomas is itching to change the decision in Brand X – a decision that he wrote the majority opinion for. I am sure you can guess what Thomas wants to do – change the decision so that the FCC designation becomes permanent.

Thus we need to get the FCC back in Democratic hands before the FCC has an opportunity to make the current classification of the internet as an information service is made permanent.

About Dave Bradley

retired in West Liberty
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