In 2003, Tim Wu first coined the phrase “net neutrality” in his paper “Network Neutrality, Broadband Discrimination.” He defined a neutral network as “internet that does not favor one application over another.” Today, the Federal Communications Commission faces a choice: either regulate the entire internet ecosystem as a public utility or do not.
The agency cannot have it both ways. Interim-FCC Chairwoman Jessica Rosenworcel claims that net neutrality also seeks to prevent companies from serving as a gatekeeper to our online content. The next FCC chair, whomever that may be, will most likely re-institute its Obama-era net neutrality rules (i.e., the Title II Order). One problem: the Title II Order regulated internet service providers, or ISPs, only. Considering that technology companies have more of a penchant for content moderation, are ISPs really the threat here?
Although the FCC should accept that the internet is not broken and leave it alone, it probably won’t do that. But, if it reinstates its Title II Order, then why not take a holistic regulatory approach to net neutrality to include all the players up the internet stack?
In 2017, under Chairman Ajit Pai, the FCC overturned the Title II Order and, in its place, restored broadband services to its traditional deregulatory framework vis-à-vis its Restoring Internet Freedom Order. The RIF Order also rightfully harmonized internet enforcement measures by putting ISPs on par with internet platforms. Before doing so, Title II advocates began bombarding the FCC with armageddon-style premonitions of ISPs turning the internet into a hyper-capitalist hell. They even argued that ISPs would charge consumers by the tweet without the Title II Order. Thankfully, that hasn’t happened, but this net-neutrality delirium is nothing new.
Tim Wu, when writing his paper, believed that the consolidation of ISPs and cable operators was inevitable. He believed that this would lead to a few ISPs having total control over what we could access online. Quite the opposite has happened. For one, there are far more competitors in the U.S. ISP market now than have ever been. This is due, in large part, to the RIF Order’s light-touch regulatory framework. This framework allows companies to use several types of communication models (e.g., wireless, fiber, and satellite) to promote faster and cheaper internet access to the masses. Additionally, since the FCC promulgated its RIF Order, there have been no reported instances or FTC enforcement of ISPs throttling content in the way Tim Wu described. The reason: ISPs have very little incentive to moderate content because they derive profit from their subscriptions to their services, compared to those that exclusively profit off collecting personal data. Ironically, it’s companies that Tim Wu felt needed net neutrality protections that are the ones more likely to violate them.
Put simply, platforms are now the gatekeepers. Businesses rely more heavily on tech platforms than they do ISPs. For instance, almost all companies need these platforms to manage their customer data, launch their app, or send ads to reach their customers. In providing those needed resources, platforms require businesses to adhere to their terms of service, of which the platform is the exclusive arbiter. This, in turn, gives platforms total discretion to determine which companies can use their services and enter the market. Moreover, platforms curate consumer content. They can prioritize searches, the apps we buy, or even the news we read. If anything, these companies are far more attenuated to our everyday internet experience than ISPs, yet the Title II Order chose to treat them differently.
The issue may not be jurisdictional as the FCC previously outlined its legal authority to regulate such behaviors of platforms under Section 230 of the Communications Act. Thus, it’s unclear as to why the platforms have eluded FCC oversight. Although Wu’s prognostications did not come to fruition, one of his proposals still holds true today: structural remedies, such as the ones available in Title II Order and Section 230, probably wouldn’t achieve net neutrality. However, if the FCC is determined to regulate ISPs as public utilities, then it would be rather hypocritical or incomplete not to hold platforms to the same standards.
In short, the FCC should regulate ISPs and platforms equally under its traditional light-touch regulatory framework or under its stringent public-utility style regulations.
Joel Thayer is Outside Policy Counsel for Lincoln Network and an attorney with Phillips Lytle LLP’s telecommunications and data security and privacy practice teams.
