Web Wars: The States Strike Back - Fordham Intellectual Property, Media & Entertainment Law Journal
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Web Wars: The States Strike Back

Web Wars: The States Strike Back

Error – 404 Not Found. The service you wish to access hasn’t paid your internet service provider (ISP), so your access to that service has been blocked. Welcome to the world of “paid prioritization!” Today, your favorite services can be placed in “fast” or “slow” lanes based on how much they are willing to pay your ISP, such as Verizon or Comcast.1 Thousands of instances of throttling were recently identified in a September 2018 study by Northeastern University and the University of Massachusetts, Amherst.2 The study found that providers like Verizon, AT&T, T-Mobile and Sprint have intentionally slowed down users’ access to Netflix, Amazon Prime and YouTube.3

ISPs claim that throttling, or intentionally slowing down access, is a standard internet traffic management practice.4 The ability to throttle, however, has serious potential to disrupt internet space: for example, ISPs can promote Bing’s search engine over Google’s by throttling access so much that Google  becomes unusable.5 Why would they do this?  Because now these services have to bid against each other for access to you and me—and the ISP will decide which service will reach us based on who pays the most money.6 These practices are already being utilized by ISPs like MEO, who have created a pricing model based on what services a consumer wants high speed access to, a platform eerily similar to those of cable packages, and far from the free and open internet we’ve become accustomed to.7

Just before the Federal Communications Commission (“FCC”) repealed net neutrality, a University of Maryland survey found that 89% of Democrats and 75% of Republicans favored keeping neutrality restrictions in place.8 Nevertheless, on December 14, 2017, the FCC voted 3 to 2 along party lines to repeal net neutrality rules.9 Just minutes after the vote, New York Attorney General Eric Schneiderman stated his intent to sue the FCC and stop its “illegal rollback of net neutrality.”10

The world took notice, and in February of 2018,  twenty states and the District of Columbia joined New York in filing suit against the FCC, arguing that the agency’s actions were “arbitrary, capricious, and an abuse of discretion.”11 Then on October 11, 2018, the Justice Department and the FCC filed a 167-page defense, arguing there was “no substantial reason to second-guess the commission’s decision to eliminate the rules that the agency has determined are both unlawful and unwise.”12 The United States Court of Appeals for the District of Columbia will be holding oral arguments for the case on February 1, 2019.13

Also to be decided in this case is if the order properly preempts states from enacting their own net neutrality legislation.14 Several states have sought to pass laws that resemble net neutrality, but don’t enforce the restrictions on all ISPs, and therefore don’t directly violate the FCC’s prohibition on state laws.15 Vermont has gone a step further, when Governor Phil Scott signed an order requiring all ISPs that do business with the government to treat all internet traffic equally.16 On October 18, 2018, mobile industry lobbyists, CTIA, and other large lobby groups filed suit against Vermont to stop the state law.17

California, however, went the furthest. On September 30, 2018, Governor Jerry Brown signed the nation’s toughest net neutrality bill.18 Unlike Vermont’s bill, California banned all manipulation of bandwidth by ISPs in the state, as opposed to just those contracting with the government.19  California goes even further than previously existing federal net neutrality restrictions by banning “zero-rating” of specific apps—meaning plans like T-Mobile’s “Binge On” service, which allow unlimited data for select streaming apps, would no longer be allowed.20 Unfortunately, on October 26, 2018, California and the FCC agreed that the state will hold off any enforcement of the new law until legal action between the two parties is resolved.21

  1. Tali Arbel, After net neutrality, brace for Internet ‘fast lanes’, USA Today (Dec. 20, 2017) https://www.usatoday.com/story/tech/news/2017/12/20/after-net-neutrality-brace-internet-fast-lanes/970712001/. [https://perma.cc/BD8R-RPZ9]

  2. See Olga Kharif, YouTube, Netflix Videos Found to Be Slowed by Wireless Carriers, Bloomberg (Sep. 4, 2018) https://www.bloomberg.com/news/articles/2018-09-04/youtube-and-netflix-throttled-by-carriers-research-finds. [https://perma.cc/3HWL-ALHX]

  3. Id.

  4. Jon Brodkin, Verizon accused of violating net rules by throttling video, ars TECHNICA (Jul. 26, 2017) https://arstechnica.com/tech-policy/2017/07/verizons-throttling-of-video-should-be-investigated-by-fcc-petition-says/.[https://perma.cc/ZF57-ERUC]

  5. Jason Guerrasio, John Oliver explains why you should really care about net neutrality, Bus. Insider (May 8, 2017) https://www.businessinsider.com/john-oliver-net-neutrality-fcc-2017-5. [https://perma.cc/844Q-ATWE]

  6. Id.

  7. Cory Doctorow, Portuguese non-neutral ISP shows us what our Trumpian internet will look like, Boing Boing (Oct. 28, 2017) https://boingboing.net/2017/10/28/warning-taken-as-suggestion.html. [https://perma.cc/L4WY-3DGV]

  8. Harper Neidig, Poll: 83 percent of voters support keeping FCC’s net neutrality rules, The Hill (Dec. 12, 2017) https://thehill.com/policy/technology/364528-poll-83-percent-of-voters-support-keeping-fccs-net-neutrality-rules. [https://perma.cc/DF7H-G5DQ]

  9. Cecilia Kang, F.C.C. Repeals Net Neutrality Rules, N.Y. Times (Dec. 14, 2017) https://www.nytimes.com/2017/12/14/technology/net-neutrality-repeal-vote.html. [https://www.nytimes.com/2017/12/14/technology/net-neutrality-repeal-vote.html]

  10. Alison Griswold, The first lawsuit to save net neutrality was announced minutes after the FCC voted to repeal it, QUARTZ (Dec. 14, 2017) https://qz.com/1157178/us-state-attorneys-general-are-already-suing-to-save-net-neutrality-from-the-fcc/. [https://perma.cc/F9NJ-78TZ]

  11. Colin Lecher, 22 attorneys general sue to block net neutrality rollback, The Verge (Jan. 16, 2018) https://www.theverge.com/2018/1/16/16898352/attorneys-general-lawsuit-fcc-net-neutrality. [https://perma.cc/D9XV-RBMB]

  12. David Shepardson, U.S. defends FCC’s repeal of net neutrality rules, Reuters (Oct. 12, 2018) https://ca.reuters.com/article/technologyNews/idCAKCN1MM242-OCATC. [https://perma.cc/V58C-AQCB]

  13. Id.

  14. Id.

  15. Jacob Kastrenakes, California governor signs nation’s toughest net neutrality bill into law, The Verge (Sep. 30, 2018) https://www.theverge.com/2018/9/30/17913712/california-net-neutrality-bill-signed-law-jerry-brown. [https://perma.cc/JU63-HVR3]

  16. Neidig, supra note 8

  17. Brodkin, supra note 4

  18. Kastrenakes, supra note 15.

  19. Neidig, supra note 8

  20. Matt Kapko, California’s net neutrality law could put an end to ‘zero-rating’ services, Fierce Wireless (Oct. 1, 2018) https://www.fiercewireless.com/wireless/california-s-net-neutrality-law-could-put-end-to-zero-rating-services. [https://perma.cc/4DC9-HF83]

  21. Kastrenakes, supra note 16.

Kyle Fleming