Robert Temple

JLMC 460 Final Paper

April 30, 2018

Net Neutrality
 Net Neutrality, a few years ago no one probably stopped to think twice about it. That’s

because back in 2014 there was a motion set in place by the Federal Communications

Commission or (FCC) to put a shield around it and protect it. That should have been that and the

rest of this discussion should not be happening. It was not until the 2016 Presidential Election

came along and the Trump Administration replaced the Obama Administration in the White

House. In 2017 President Donald Trump announced he planned to take away the protection

shield that was set in place by former President Barack Obama. (Breland, 17, The Hill) This is

important because before everything on the internet was free and open access was granted to all.

While everything is still the same right now, motions have been put in place with the FCC to take

these freedoms away.

Years ago, people used to log onto internet through a provider like AOL. AOL was a closed off

network, but basic things could be done with it and email was also included. When people signed

up for AOL everything came included but that’s not how todays internet operates. People today

typically sign up to get internet through a cable or phone company and use broadband for

connection purposes. (Sprigman, law.nyu) The FCC caught on to this and changed things up in

2015. The name broadband switched over to telecommunications service allowing to better

control the providers. When this switch initially happened net neutrality, regulations were

established to ensure that ISPs would not discriminate certain content. This is what everyone has

known the internet to be for the last few years but that’s all in the process of changing. Those

who are going to be paying the most attention to net neutrality are the ISPs. They will be figuring

out how to manipulate the rules that are put in place to favor them. Maybe one company owns a

steaming service, and another doesn’t, or they have a deal to provide them with exclusive
content. While this data will be accessible for a fee anything that is viewed as a competitor to the

ISP will be slowed down significantly. (Sprigman, Law.nyu)

So why is this important now? In the past everything was operated by cable companies and there

was little competition, this is where broadband providers come in to play. They provide a means

of competition and with competition comes a price to pay. Consumers need to know about what’s

going on around them the best way to do that is to look at video streaming services, such as

Netflix, Amazon Prime, and HBO. Right now, broadband providers cannot slow, throttle or

discriminated against under current regulations. Consumers have all the power for now. But if

net neutrality is repealed by the FCC then these protections will vanish. (Sprigman, law.nyu)

The internet and all its data should be treated the same nothing should be held back, throttled, or

discriminated against based off its status. Net neutrality at its core is a protection that allows for

small businesses to come into the market and not have to worry about being consumed by the

bigger companies that already dominate it. While the bigger companies such as Verizon,

Comcast and AT&T have come out in support of net neutrality that can change just as quickly as

the terms of service agreement can change. (Sprigman, law.nyu)

Back in the early 2000’s when the internet was still being molded into what it is today, the FCC

came up with a set list of four freedoms that consumers should have access too. Access the

lawful content of their choice, run apps and services of their choice, connect their choice of legal

devices that won’t harm the network and having competition among network, application and

content providers. These principals were formed by the FCC back in 2005 and serve as a guide

for how the internet should be regulated in regard to the freedom of speech. (fcc.gov) While it

may not be perfect it gives us a piece of mind as to what we can expect when logging on to the

internet.
Consumers will notice the affects when they have to start paying more for their content.

One case in particular consumers should focus on is the AT&T and Time Warner merger deal.

The $85.4 billion merger would combine the second and fourth largest broadband providers in

the county. However, the Department of Justice has sued AT&T and will attempt to stop this deal

from taking place on the grounds of antitrust. “If the merger goes forward, consumers all across

America will be worse off as a result,” (Kang, NYTimes Pg. 1) said Craig Conrath, the Justice

Department’s lead defense lawyer. AT&T and Time Warner say they deny the notion that prices

would go up, their case is competition in Silicon Valley with the likes of Google, Facebook,

Netflix and Amazon. Their claim is “The government’s theory is fundamentally stuck in the

past,” (Kang, NYTimes Pg. 1) said Daniel Petrocelli, the lead lawyer for AT&T and Time

Warner. AT&T believes that it is doing the complete opposite of what the government is accusing

it of trying to do. The merger “would be a weapon for AT&T because AT&T’s competitors need

Time Warner programming.” Mr. Conrath said.

But why is AT&T attempting to merge with Time Warner “Simply put, AT&T is having a hard

time retaining customers.” (Lee, Recode pg. 1) Phone bills are on the decline due to tough

competitors like Verizon and T-Mobile. AT&T is trying to do what Fox and Disney did and they

good chance at getting it done. “Time Warner is motivated to look up for a buyer because

growing tech giants like Netflix, Google and Facebook are threating to eat up its audience.” (Lee,

Recode pg. 1)
In 2010 the FCC rewrote the laws governing ISP’s now because this was back in 2010 they were

filed under Title I of the communications act of 1934. Title I is the more laid back and relaxed

version of the communications act. Verizon didn’t like this, so they decided to sue the FCC

because they weren’t strict enough. The courts said if the FCC wanted they could move Verizon

and the other ISP’s to Title II to have a better oversight. (Verizon v. FCC, 740 2014) So, the FCC

went ahead and did and to top things off the ISP’s got Ajit Pai the new chairman of the FCC as

well. Pai was appointed under the Trump Administration and was a former lawyer for Verizon.

However, state legislation can pass laws that would normally take congress a long time to get

through. Washington passed its own net neutrality regulations after the FCC voted in December

to repeal net neutrality. “Today we make history: Washington will be the first state in the nation

to preserve the open internet,” Washington Governor Jay Inslee said when he signed the bill into

legislation on March 6th 2018. “We’ve seen the power of an open Internet. It allows a student in

Washington to connect with researchers all around the world, or a small business to compete in

the global marketplace. It’s allowed the free flow of information and ideas in one of the greatest

demonstrations of free speech in our history.” This bill prohibits broadband providers form

blocking legal content, apps and services, or non-harmful devices from connecting to their

networks. It also stops them from slowing speeds with select streaming services. It is the basic

definition of what net neutrality is supposed to do and why it’s so important to make sure it sticks

around. (Fung, March 6, The Washington Post)

Next up we have the United States Telecom Assn v. FCC. this is an interesting case because now

instead of focusing on the ISPs were looking at the telephone aspect of the FCC. Recently the

FCC switched common carried over to Title II of the communications act. This allows for stricter

regulations regarding USTA. Since this is the case then USTA will be allowed to sell premium
access to its services. What ended up happening was custom dial features were set up in the late

1990’s and early 2000’s and when customers went to make calls they were not going through.

Specifically, though this was in regard to “call-identifying information” where the USTA has to

move around towers to a specific location in order to get information through. They called this a

“packet-mode” communication.

Chevron’s two-step analysis was applied here. The basis of what was happening is dials were

being sent out and pining an origin or target to test the communication. The department of justice

along with the FBI wanted to team up to use its J-Standard but they did not want the information

to be released based off the data that was collected. The courts ended up vacating certain portions

of the calling functions and remanded further proceedings but wouldn’t allow them to be

reviewed. (USTA vs. FCC)

Net Neutrality has come a long way. It used to be a term hardly anyone associated with or even

knew existed. The courts have progressed over time we can see the results of the with the

Verizon and AT&T cases specifically. Years ago, if either company wanted to do what they are

trying to do now there is no doubt they probably could have. But we live in a different time, one

that favors the tends to favor the consumer in this case even though the ISPs are pushing for the

removal of net neutrality.

Again, this entire concept is fairly new so while it may seem like things are leaning towards the

removal of net neutrality anything is possible. As for the rules that are currently set in place the

courts seem pretty firm on keeping them intact but perhaps they will be updated to keep up with

modern times.

As for where it is going in the future that is hard to say. It is really up to the consumers to save

net neutrality at this point. Thankfully things are looking up for the everyday consumer. The

senate is about to force a vote sometime before June as long as they get one more signature to

keep the internet free and open as it was intended to always be. The best way to help keep us in

the fight would be to call up local representatives and tell them that net neutrality needs to stay.

Another possible option would be to go to the FCCs webpage click through to find the comments

discussing net neutrality and crash their site in doing so.

In conclusion, net neutrality is something that needs to be closely watched over the next year to

see how it will shape out. Political elections have potential to swing votes one way or the other

so that will be something to look out for. Mergers are another as seen with AT&T just the other

day Sprint and T-Mobile merged to try and bring more competition to the field.
 Work Cited

Verizon v. FCC, 740 F.3d 623, 408 U.S. App. D.C. 92, 2014 U.S. App. LEXIS
680, 59 Comm. Reg. (P & F) 975 (D.C. Cir. January 14, 2014)

United States Telecom Ass'n v. FCC, 825 F.3d 674, 423 U.S. App. D.C. 183,
2016 U.S. App. LEXIS 10716, 64 Comm. Reg. (P & F) 1663, 2016 WL 3251234
(D.C. Cir. June 14, 2016)

Prism Techs., LLC v. United States Cellular Corp., 2013 U.S. Dist. LEXIS
177407, 2013 WL 6712665 (D. Neb. Dec. 18, 2013)

http://www.law.nyu.edu/news/ideas/christopher-jon-sprigman-net-neutrality-explained

http://fortune.com/2018/03/06/net-neutrality-state-law-washington/

https://www.nytimes.com/2018/03/22/technology/att-time-warner-antitrust.html

http://thehill.com/policy/technology/342575-white-house-says-it-supports-fcc-plan-to-scrap-
net-neutrality-rules (Berland)

https://apps.fcc.gov/edocs_public/attachmatch/DOC-243556A1.pdf (Four freedoms of net

neutrality)
https://www.recode.net/2018/4/27/17288432/att-time-warner-merger-acquisition-donald-trump-
justice-lawsuit-ed-lee-kara-swisher-podcast