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Net Neutrality Killed, But The Fight To Save Netflix, Twitter and Facebook Isn’t Over Yet

Things might look bad right now for the future of the Internet in America, but hope is not entirely lost.

Diane Tepfer holds a sign with an image of Federal Communications Commission (FCC) Chairman Ajit Pai as the "Grinch who Stole the Internet" as she protests near the FCC, in Washington, where the FCC is scheduled to meet and vote on net neutrality. The vote scheduled today at the FCC, could usher in big changes in how Americans use the internet, a radical departure from more than a decade of federal oversightNet Neutrality, Washington, USA - 14 Dec 2017

Protester holds a sign with an image of FCC Chairman Ajit Pai as the “Grinch who Stole the Internet”

Kaster/AP/REX/Shutterstock

The FCC just voted 3-2 along party lines to dismantle the set of protections that go by the shorthand “net neutrality,” and it’s bad news for consumers, media-lovers, and small internet businesses alike.

Completely reversing all of net neutrality is a huge departure from what consumers are used to, and in the long run the consequences could be absolutely disastrous. But there’s a lot of confusion and a lack of clarity about how the demise of net neutrality will happen and hurt individuals.

Although the Commission just voted to kill the rules, the internet won’t immediately be split into tiered bundles today or even this year. If it net neutrality does end up doomed, the reality of “how” is slower, more complicated, and more insidious than that. But the good news is, it still may not be doomed at all. Here’s the reality of whether we’ll get there, and when.

What actually is net neutrality?

Net neutrality is, at its core, a simple idea: Your internet service provider doesn’t get to pick and choose which content you get to see.

The FCC codified that in the Open Internet Order of 2015. That Order applies to both traditional broadband carriers like Comcast and Charter, as well as to mobile carriers like T-Mobile and Verizon, and it put into place three bright-line rules:

  1. Your ISP may not block your access to lawful content, apps, or services.

It doesn’t matter if the video-streaming app you’re using is a direct competitor to the company that owns your internet connection; they have to let you connect to it the way you request.

  1. Your ISP may not impair or degrade (throttle or slow down) any lawful site, service, or app you’re trying to access just based on what it is or does.

It doesn’t matter if the app you’re using is a direct competitor to the company that owns your internet connection; they have to let you get content from it at the speed at which it is delivered.

  1. Your ISP may not favor some kind of internet traffic over other internet traffic in exchange for financial consideration.

This is the ban on paid prioritization, or the split into “fast lanes” and “slow lanes.” Your ISP can’t charge Netflix an extra fee in order to not have their connection to customers throttled to the point of uselessness.

Outside Netflix’s headquarters in Los Gatos, California

Courtesy of Netflix

What’s happening to the rules right now?

We had a very big political transition when the Obama administration ended and the Trump administration began, and that affects the agencies, too. Current FCC chair Ajit Pai was one of the commissioners who voted against the 2015 rule at the time, and he’s been gunning to have it thrown out ever since. On Thursday, he succeeded.

Pai released the final draft of a new rule to kill off the 2015 Order right around Thanksgiving. The new text (200-page PDF) is a full rollback of everything in the 2015 rule (which already survived a court challenge) did and does, and would permit throttling, blocking, and paid prioritization, among other shenanigans.

The Commission voted on the new Order during its regular monthly meeting session on Thursday, Dec. 14 and, as predicted, the measure passed 3-2. Republican Commissioners Michael O’Rielly and Brendan Carr joined Pai in approval, and Democratic Commissioners Mignon Clyburn and Jessica Rosenworcel dissented (their statements).

Now what?

When the FCC adopts an Order, it doesn’t become law immediately. The process takes time.

Before becoming effective, the new rules will first have to appear in the Federal Register, a process that can take anywhere from days to months. Then once the new rules are in the Federal Register, the date they take effect will be publicly known.

In 2015, for example, the FCC voted to adopt net neutrality on Feb. 26. It was another six weeks before the Order was published in the Federal Register in mid-April, and the rule finally took effect in June of that year.

If the 2017 ruling follows a similar timeline, then we would look for it to land in the Federal Register around Feb. 1.

But more importantly: As soon as the new rule appears in the Federal Register, the lawsuits will begin.

What lawsuits?

Several groups are already gearing up to file lawsuits.

Public-interest organization Free Press was first out of the gate and has already announced its intention to jump into the fray. It is likely to be joined by several other public interest, civil rights, and digital rights interest groups, and possibly some trade (lobbying) groups like the Internet Association, which represents pretty much every major internet company you’ve heard of (including Amazon, Facebook, Google, Pinterest, Reddit, and plenty of others).

The Amazon logo in Santa Monica, Calif. Amazon.com is suing its one-time logistics chief a month after he was hired by Target, saying he's violated a non-compete clause that prohibits him from joining a rival for at least 18 months. Target said, that the suit is without meritAmazon-Target, Santa Monica, USA

Some states’ attorney generals will also be hopping on board the lawsuit express. New York AG Eric Schneiderman’s office has vowed to lead a multistate lawsuit against the FCC.

Other groups that don’t necessarily participate in the suits will still file amicus briefs in the case: these are friend-of-the-court letters, added to the pile of claims and evidence, that say why someone has a stake in a case and why it should go a certain way. So for example, we might see civil rights and consumer interest groups like the ACLU, EFF, or Consumers Union file amicus briefs in favor of upholding net neutrality and throwing out Pai’s rule — and we might also see trade groups like USTelecom, which represents ISPs, filing amicus briefs in favor of trashing net neutrality and  maintaining Pai’s rule.

Gizmodo recently explained in depth how the court cases will be formed, consolidated, and heard. Overall, the full process will most likely take anywhere from 12-24 months.

What happens while that’s all going on?

The first really important step in the court process determines what the world is like for everyone while the case is happening.

The organizations filing the suits will first request a stay on the new rules’ implementation. Basically, they’ll ask for a pause button: Please don’t put this in effect or change anything until after we’ve all argued it out in court.

If the court grants a stay, then nothing changes while the cases are still being worked over and argued out.

If the court denies a stay, then net neutrality is already dead, even while lawyers are arguing that it shouldn’t be killed.

What happens if there’s no stay?

The most likely case is that in the short term, the large ISPs — Altice, AT&T, Charter, Comcast, Verizon, and so on — would still make no real changes to their behavior, or only very small changes, so that it would be much easier to argue in court that they have no incentive to do any harm. What they do more than 18 months out depends on how the lawsuits go.

What if the FCC loses?

Depending specifically how and why the court rules against Pai, we either go back to having the 2015 rule, or the Commission gets sent back to the drawing board to rewrite part or all of its 2017 rule.

But the timeline and the politics matter. By that point we would almost certainly be in early-to-mid 2019, with the 2020 election breathing down everyone’s backs. It is possible the Commission would move slowly on a rewrite, kicking the can to 2021 to see first which way the next administration leans.

What if the FCC wins?

The United States Senate Committee on Commerce, Science, and Transportation conducts hearings to examine the nominations of Ajit Varadaraj Pai, left, Jessica Rosenworcel, center, and Brendan Carr, right, each to be a Member of the Federal Communications Commission on Capitol Hill in Washington, DC.FCC Confirmation Hearing, Washington DC, USA - 19 Jul 2017

Ajit Varadaraj Pai, left, Jessica Rosenworcel, center, and Brendan Carr, right.

REX/Shutterstock

This is the path to a “we’re all screwed” scenario.

If the Court of Appeals upholds the FCC’s 2017 rule, the groups that filed and lost the lawsuits would likely try to take it to the Supreme Court, or convince Congress to rewrite the law. But in the meantime, we would no longer have net neutrality.

With the pressure of an active lawsuit off, ISPs would be free to start making changes that hurt subscribers and businesses alike.

It’s unlikely you’d immediately see Comcast, the nation’s largest ISP, start breaking up the internet into tiered content packages, although it’s possible you might see a small local or mobile carrier pilot that kind of billing strategy. As The Verge noted recently, there are very few legal barriers to setting up that kind of scheme right now, if someone wants to.

Instead, we’d probably see something more insidious that slowly snowballs into something big, coming from the other end. ISPs would be more likely to charge fees to the internet services to avoid being throttled than they would be to charge customers to access them, at least at first.

We can call that an educated guess, because it’s happened before. Back in 2014 and 2015, Netflix had a problem: Its service to Verizon and Comcast customers was awful and getting worse, and customers — thinking Netflix was the issue — were complaining and cancelling.

The issue wasn’t on Netflix’s end, though. It was on the ISPs that were allowing Netflix traffic (of which there is lots) to bottleneck. In the end, Netflix paid up to Verizon, Comcast, Time Warner Cable (now Charter) and others — and lo, customers’ service improved.

But any money a company loses in one area, they try to recoup in another. What do you think happens to the amount subscribers have to pay Netflix every month if Netflix has to pay ISPs more every month just to serve those subscribers? Prices increase.

It’s a process that will probably be slow — until suddenly it isn’t. And it’s a self-reinforcing cycle: If the incumbent needs to pay to access customers, they will raise the rates on those customers to compensate… but a newcomer won’t be able to compete and break in, because it won’t be able to afford what it costs to access customers.

That’s what net neutrality supporters are afraid of. Not that two years from now you’ll have to pay an extra $1 per month to get Netflix, but that ten years from now innovation and competition will have ground to a halt and the existing giants of the internet will be the only game on the internet. And you’ll pay more, every day, to access less than ever before.

But Congress — yes, that Congress — could solve the problem once and for all.

Net neutrality’s saving grace may actually be the fact that it’s now a political issue.

Recent surveys show incredibly high support for net neutrality: More than 80% of Americans support the rule and don’t want it repealed — and yes, that is a bipartisan sentiment.

Massachusetts Senator Ed Markey has already announced his intention to roll back the FCC’s rollback with a legislative tool called the Congressional Review Act. A CRA not only kills a rule, but prevents the agency in question from creating the same rule again — so it would be a blunt weapon that stops the FCC from investigating the question again in the same way.

Although Democratic proposals rarely get traction in Congress as it stands in 2017, the broad support for net neutrality protections from the far right, the far left, and everyone in between could make net neutrality one of the rare issues the parties agree to work together on.

Of course, we’re also about to careen directly into 2018, and another kind of political chaos: the midterm elections. By this time next year, the political landscape may be completely different, and the Congress of 2019 could craft entirely new law for the FCC to implement.

In the completely chaotic political environment we’ve got, it’s harder than usual to game out and predict who will be doing what, where, by then. But if you’d like your lawmakers to act, best let them know how you feel.

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