The Net Neutrality Fight in Sacramento: Six FAQs

As the fight between California and the FCC heats up, more people are trying to wrap their heads around this complex issue. As the recent CivicSpark AmeriCorps addition to SBC’s Gold Country Broadband Consortium, I felt it my duty to dig in. Below I’ve listed a few common questions that seem to keep popping up and will do my best to give straight answers.

1. What is it?  Net neutrality is “the idea, principle, or requirement that Internet service providers (ISPs) should or must treat all Internet data as the same regardless of its kind, source, or destination.” This means that ISP’s can’t give preferential treatment to certain content, i.e. slow down (“throttle”) Netflix while keeping YouTube speedy, just because they happen to have a business relationship with the one and not the other (or because the one will pay more than the other).

2. Why should I care? If websites can pay for preferential treatment, start-up sites with very little cash won’t have a chance. Imagine if only the same five websites functioned at convenient speeds, while everything else took minutes/hours/ eons to load… which five websites would you use most often? Furthermore, many of the largest Internet Service Providers are also providers of content; if they can speed up websites that they own while slowing everyone else down, they will effectively own the internet user experience.

3. Why do Internet Service Providers oppose it? The people who own the pipes (Internet Service Providers) stand to benefit from charging extra for expedited service. Imagine if you owned a freight train: if you’ve got 5 available cars, and 2 customers who each want to use 3 of them, wouldn’t you offer more space to the person who will pay more? You can’t really blame ISPs for wanting to do this—business is business—but then again, this kind of thing is what laws and regulations are for.

4. Why is California’s law such a big deal? In 2015, the Federal Communications Commission succeeded (after years of legal battles) in making net neutrality official federal policy. In 2017, however, the newly-appointed chair of the FCC, Ajit Pai, reversed the policy, prompting several states, including Washington, Oregon, Hawaii, Montana, New Jersey, New York, Vermont, and now California, to pass either laws or executive orders protecting net neutrality within their borders. California’s new law, the California Internet Consumer Protection and Net Neutrality Act of 2018 (SB 822) not only forbids ISPs from slowing down some sites while speeding up others, but also forbids “zero rating,” the practice of providing unlimited streaming of certain sites while charging for others. This, among other things, makes California’s law one of the strictest in the nation; indeed, it goes further than the federal rules that were repealed in 2017. In effect, this means that the Internet in California would work differently than in the rest of the country.

5. Why is the Justice Department suing California? Speaking shortly after the passage of California’s new law, former-US Attorney General Jeff Sessions said: “States do not regulate interstate commerce—the federal government does.” Sessions had a point: under Article 1, Section 8, clause 3 of the US Constitution, Congress shall have the power “to regulate commerce with foreign Nations, and among the several states, and with the Indian Tribes.” Given that most internet users don’t limit themselves to websites and signals that stay within a state’s borders, claiming that web communication counts as interstate (or even international) commerce is a pretty safe bet. Specifically, the Justice Department is arguing that California’s new law is illegal because Congress has granted the federal government, through the Federal Communications Commission, the sole authority to create rules for broadband providers. This is arguably true, although ISPs have challenged this idea in court when the FCC’s rulings were not on their side.

6. Is this the real issue? Well, no. This type of behavior, slowing things up and speeding them down at the expense of the user experience, is normally the kind of thing that would be solved by free-market competition. At present, however, a select few ISPs control an overwhelming share of the American market and, given how much it costs to set up new infrastructure, that doesn’t seem likely to change any time soon. In the past, phone and electric companies have been prohibited from exhibiting predatory or monopolistic behaviors (and been required to build their infrastructure out to underserved or “less profitable” communities) by so-called “common carrier” laws, which regulate utilities. Theoretically, internet service could also be regulated under such laws, but that would require that the FCC re-classify the internet as a utility, just like water, power, or telephone service. Needless to say, if that happened, ISPs would launch a legal battle even bigger than the one we’re seeing over net neutrality.

SBC will be closely tracking the fight over net neutrality in Sacramento, so stay tuned to learn more. Additionally, if you’re interested in bringing faster internet speeds to the Sierra and have yet to take the Gold Country Broadband Consortium’s speed test (for residents in El Dorado, Nevada, Placer, Sierra, and eastern Alpine counties), you can do so here.