When the Federal Communications Commission voted to approve net neutrality rules last year, many people saw it as a done deal. Supporters cheered the decision as a victory for the free and open internet, where the deep pockets of big companies couldn’t buy faster web speeds over struggling startups.
Since then, the issue has largely faded from the spotlight and has rarely come up on the presidential campaign trail. But internet policy experts say the FCC decision was far from the end of the story – and with just over 10 weeks until the election, time is running out for voters to ask the candidates to clarify their positions.
There’s no point where you’re like, ‘We won this one issue, net neutrality, and that’s over.’
Marvin Ammori, First Amendment lawyer and general counsel for tech company
“There are a number of unresolved issues surrounding net neutrality that are still going to be hot topics to be resolved by the next administration,” said Doug Brake, a telecom policy analyst at the nonprofit Information Technology and Innovation Foundation.
What is net neutrality again?
Net neutrality rules, also known as “open internet,” prohibit internet service providers from favoring certain high-traffic websites, like Netflix and Amazon, by giving them greater bandwidth at the expense of smaller start-up companies. Advocates argue that it ensures an even playing field. An open internet also means banning fast lanes, which would allow ISPs like Verizon and AT&T to pay extra to ensure smoother, speedier streaming for their users.
Internet companies have vowed to continue the fight against the regulation, pursuing it all the way to the Supreme Court if need be. This June, a divided panel of the U.S. Court of Appeals for the District of Columbia Circuit rejected challenges to the net neutrality rules. The next president’s administration, and the FCC, will face the colossal task of catching up to technology that evolves beyond its ability to regulate it.
Clinton would follow in Obama’s footsteps on internet policy
Hillary Clinton’s campaign website says she “strongly supports the FCC decision under the Obama administration to adopt strong network neutrality rules.”
While she would be following in the Obama administration’s footsteps, Clinton has her own decade-long record of supporting net neutrality. While serving as a New York senator, she co-sponsored the Internet Freedom Preservation Act, which sought to amend the 1934 Communications Act to ensure net neutrality.
“The internet as we know it does not discriminate among its users,” she said in 2006. “It does not decide who can enter its marketplace and it does not pick which views can be heard and which ones silenced.”
Ten years later, adopting tech sector-friendly policies is proving to be a smart fundraising strategy for the Democratic nominee. This week she wrapped up a fundraising tour that included several Silicon Valley hotspots. One of the events was hosted by Apple CEO Tim Cook, with tickets selling for $2,700 to $50,000.
Clinton has also worked broadband issues into her infrastructure platform.
“By 2020, I want 100 percent of American households to have access to quality, affordable high-speed internet, no matter where they live,” Clinton told supporters at a dinner in New Hampshire last November.
Trump – no policy yet, except for a tweet
The Republican nominee’s position is unclear, but it’s a reasonable assumption that he will line up with his party’s opposition to net neutrality, which is seen as needless government regulation.
In fact, the only public acknowledgment of the issue from Donald Trump is a 2014 tweet weighing in on net neutrality when it dominated the headlines.
“Obama’s attack on the internet is another top down power grab. Net neutrality is the Fairness Doctrine. Will target the conservative media,” he tweeted. He was referring to the 1940s law requiring newscasters to report the news in a balanced manner, which was repealed in 1987. It’s unclear what it has to do with net neutrality; open internet rules don’t give the FCC the power to interfere with any political content, conservative or otherwise.
The Trump campaign did not respond to McClatchy’s request for comment.
His running mate, Indiana Gov. Mike Pence, co-sponsored the Internet Freedom Act in 2011, which sought to kill net neutrality by prohibiting the FCC “from further regulating the internet.”
The positions of Trump’s opponents for the Republican nomination shed a bit more light on the party’s opposition to open internet regulation.
Texas Sen. Ted Cruz famously called net neutrality “Obamacare for the internet.” Florida Sen. Marco Rubio said regulation of the internet was illogical.
“While the FCC plan supposedly seeks to prevent ISPs from playing favorites, it does so by giving that power to another entity: government,” Rubio wrote in an opinion piece for Politico in March. “The answer to correcting injustice in an economy is to increase consumer power, not government power.”
The details of internet policy aside, there are other reasons the sector might not support Trump.
“The tech community is full of immigrants who started their companies here, so many of them were founded by immigrants,” said Marvin Ammori, a First Amendment lawyer well-known for his work on net neutrality issues who’s general counsel for Hyperloop One, a tech company backed by Elon Musk that’s working on an ultra-fast transit system. “So if you’re anti-immigrant you’re not going to be popular in (Silicon) Valley. If you’re anti-gay you’re not going to be popular in the Valley. . . . So it does put Republicans at a disadvantage even if they’re progressive on some tech issues.”
How much does it matter to the internet’s future who becomes president?
“The president does matter,” Ammori said, pointing out that the president’s party gets to pick three of the five FCC commissioners, as well as appoint the solicitor general, who would defend the regulations in front of the Supreme Court – or not.
“This (net neutrality) was a 3-2 vote, If you get another Republican in there they could undermine everything the Obama administration has done,” he said.
Despite the FCC decision, some ISPs are finding loopholes to go around net neutrality rules. For example, they might set monthly data limits for users but exempt certain apps or websites. This is known as “zero rating,” and some internet advocates argue it gives certain content preferential treatment.
The FCC’s 3-2 party line vote in favor of the open internet rules in 2015 reclassified broadband internet as a public utility, allowing the agency to regulate internet service providers under the strict laws of common carriers, the same as telephone companies
“These policies will have to evolve and change, and as carriers try to introduce new services and ‘innovative pricing models,’ what ends up happening is you always have to make sure it remains an even playing field,” Ammori said.
One of the clearest examples is T-Mobile’s unlimited streaming service “Binge On.” While it might seem like a good thing for consumers, some internet policy experts worry that while it’s technically legal, its model infringes on net neutrality. Users are allowed to stream video without it counting toward their monthly data cap – but only as long as they stream from a select group of content providers. Smaller, less established video services that aren’t Netflix or HBO Go might never get to consumers, and that could stifle innovation for online startups.
“Right now the FCC is somewhat quiet on this, since within the net neutrality order itself this is allowed, so the FCC is reviewing them on a case-by-case basis,” said Brake of the Information Technology and Innovation Foundation.
The use of zero rating practices by internet service providers will likely become a big tech issue for the next administration.
“Binge On undermines the core vision of net neutrality,” Barbara van Schewick, the director of the Stanford Center for Internet and Society, wrote in a report on the T-Mobile service. “Internet service providers that connect us to the internet should not act as gatekeepers that pick winners and losers online by favoring some applications over others.”