Will the FCC’s net neutrality repeal grind the Internet to a halt?

It also set off our antennae because of the sweeping claim Democrats are making — that consumers will see a sharp drop in Internet speeds if the Federal Communications Commission proceeds with its plan to unwind net neutrality rules imposed under President Barack Obama in 2015.

Led by a new chairman chosen by President Trump, the FCC voted to roll back the Obama-era rules and relinquish oversight of Internet service providers to the Federal Trade Commission.

Supporters say that by lifting the burden of net neutrality regulations, companies such as AT&T, Comcast and Verizon will invest in their networks, improve service and expand to underserved and rural areas. Critics say that absent regulations, Internet providers have free rein to slow down certain websites or features — video streaming, for example — or speed up websites and services willing to pay more for Internet “fast lanes.”

The tweet from Senate Democrats is clearly meant to be exaggerated. For words to load one at a time, the Internet would have to slow down to a glacial crawl that would render it pointless. But the basic assertion in the tweet — that consumers will see a sharp drop in Internet speeds — is worth fact-checking.

The Facts

In 2015, the FCC voted 3 to 2 along party lines to approve rules enshrining what’s known as net neutrality — the idea that all types of digital traffic should be treated equally, whether it’s email, Web content, video or any other kind of data. The FCC’s Open Internet Order reclassified broadband providers as telecoms; imposed transparency rules; and, among other changes, barred these providers from blocking online content, throttling speeds or setting up Internet fast lanes and charging fees for their use, what’s known as “paid prioritization.”

For net neutrality advocates, the Open Internet Order was a milestone after years of debate and court battles over earlier regulations. A December 2017 report by the Congressional Research Service outlines the recent history of net neutrality in the FCC, Congress and the courts, and makes a key point: In an earlier online era, the most popular services were email and Web content, a relatively light load for networks. Since then, demand has grown for data-heavy services such as video streaming, online gaming and Internet voice services.

The Obama-era regulations prevented broadband companies from blocking or slowing down any online service or application for any reason other than reasonable network maintenance. The rules also barred paid prioritization. But these regulations would be in place for just short of three years.

Under FCC Chairman Ajit Pai, a Trump appointee, the commission in December voted 3 to 2 along party lines to reverse almost all of the Open Internet Order and transfer the FCC’s oversight of Internet service providers to the FTC, which has a lighter touch since it can only enforce the terms of the broadband providers’ user agreements and police “anticompetitive, unfair or deceptive conduct.”

The FCC’s rollback proposal, called Restoring Internet Freedom, was published Feb. 22 in the Federal Register, the official journal of administrative actions, but additional paperwork must be filed before the new rules are finalized.

“It will lead to slower speeds for certain websites, absolutely,” said Gigi Sohn, who was counselor to former FCC chairman Tom Wheeler, an Obama appointee, when the now-repealed net neutrality rules were adopted in 2015. She is now a distinguished fellow at Georgetown Law’s Institute for Technology Law and Policy.

“There is a very good chance that companies will ask . . . Netflix or Hulu, Etsy or Facebook, even the little companies, too, to pay for faster service or better quality of service,” Sohn said. “And if you don’t pay, you’ll get lower quality of service.”

This hasn’t happened. But a 2016 report by the FCC says 61 percent of Americans have one or no provider in their area offering high-speed Internet. The number rises to 87 percent for rural Americans. So if it did happen, it’s not as if consumers could switch easily to a faster or less content-biased provider.

The Internet Association, a group that represents tech giants such as Facebook and Google, says broadband providers need net neutrality regulations or they’ll come to control what users see by giving top speeds only to the highest bidders — or to themselves. Comcast owns NBC. AT&T owns DirecTV. Both companies and Verizon offer their own video-streaming services.

“We need strong, enforceable net neutrality protections because consumers have little or no choice at the point of connection, and ISPs shouldn’t be able to advantage their own or preferred websites and apps over the rest of the Internet,” said Noah Theran, an Internet Association spokesman. “Consumers should choose which websites and apps are best.”

Contrary to what Democrats claim in their tweet (which looks a lot like this tweet from the ACLU, by the way), some of the biggest U.S. broadband providers say in pretty stark terms that they have no plans to block or throttle content or to start along the road of paid prioritization.

“Even with the FCC’s recent changes to net neutrality, nothing has changed,” said Richard J. Young, a Verizon spokesman. “For years, we’ve seen all sorts of hypothetical scenarios in which some speculate that changes to net neutrality rules will bring the end to the Internet as we know it. The fact is that we need to end the speculation, because the reality tells a very different story.”

He quoted from Verizon’s open Internet pledge. “ ‘We will not throttle or slow down any Internet traffic based on its source or content,’ ” Young said. “That’s been our commitment for years. And we have zero intention of changing or pulling back on that pledge.”

The pledge also says: “We will not accept payments from any company to deliver its traffic faster or sooner than other traffic on our consumer broadband service, nor will we deliver our affiliates’ Internet traffic faster or sooner than third parties’. We will not prioritize traffic in a way that harms competition or consumers.”

Sena Fitzmaurice, a spokeswoman for Comcast, said “we have a long history of supporting net neutrality and have been calling on congressional legislation to enshrine it for years.” She pointed to a Dec. 13 blog post by David L. Cohen, Comcast’s senior executive vice president and chief diversity officer.

“Despite repeated distortions and biased information, as well as misguided, inaccurate attacks from detractors, our Internet service is not going to change,” the blog post says. “Comcast customers will continue to enjoy all of the benefits of an open Internet today, tomorrow, and in the future. Period.”

The post goes on to say that “we do not and will not block, throttle, or discriminate against lawful content” and that “we’ve not entered into paid prioritization agreements and have no plans to do so.”

“We don’t block websites,” Randall Stephenson, AT&T’s chairman and chief executive, wrote in an open letter Jan. 24. “We don’t censor online content. And we don’t throttle, discriminate or degrade network performance based on content. Period. We have publicly committed to these principles for over 10 years. And we will continue to abide by them in providing our customers the open Internet experience they have come to expect.”

Critics say these statements in some cases leave enough wiggle room for a change of position once public attention shifts away from the FCC’s latest round of rulemaking, or once any court challenges to the new FCC rules are resolved. There are several documented cases of broadband providers blocking or slowing down applications. The FCC in 2008 found that Comcast had violated one of the commission’s Internet policies by blocking some users’ peer-to-peer file-sharing connections in an effort to manage network traffic. (Comcast no longer manages traffic like this; its network management policies are posted online.)

Stephenson’s statement does not specifically address paid prioritization, and Bob Quinn, AT&T’s senior executive vice president for external and legislative affairs, touched off speculation about prioritized content when he wrote Feb. 27: “What we do care about is enabling innovative new technologies like autonomous cars, remote surgery, enhanced first responder communications and virtual reality services. . . .  I think we can all agree that the packets directing autonomous cars, robotic surgeries or public safety communications must not drop. Ever. So, let’s address concerns around paid prioritization without impacting those innovations.”

Broadband providers have tweaked their positions over the years on paid prioritization, and in some cases have not lived up to other customer pledges, critics say. Sohn pointed to a court case, Verizon v. FCC. In 2013, Verizon’s attorney said the company was interested in paid prioritization during oral argument before a panel of the U.S. Court of Appeals for the District of Columbia Circuit.

“Broadband providers also have powerful incentives to accept fees from edge providers, either in return for excluding their competitors or for granting them prioritized access to end users,” Judge David S. Tatel wrote in ruling on the case in 2014. “Indeed, at oral argument, Verizon’s counsel announced that ‘but for [the Open Internet Order] rules we would be exploring those commercial arrangements.’ ”

He added: “Although Verizon dismisses the [FCC’s] assertions regarding broadband providers’ incentives as ‘pure speculation,’ those assertions are, at the very least, speculation based firmly in common sense and economic reality.” The court noted that “Voice-over-Internet-Protocol (VoIP) services such as Vonage increasingly serve as substitutes for traditional telephone services, and broadband providers like AT&T and Time Warner have acknowledged that online video aggregators such as Netflix and Hulu compete directly with their own ‘core video subscription service.’ ”

The two Democratic FCC commissioners say broadband providers could roll out paid prioritization by making discreet changes that might go unnoticed.

“Maybe several providers will quietly roll out paid prioritization packages that enable deep-pocketed players to cut the queue,” Commissioner Mignon Clyburn said. “Maybe a vertically-integrated broadband provider decides that it will favor its own apps and services. . . . Maybe some of these actions will be cloaked under nondisclosure agreements and wrapped up in mandatory arbitration clauses so that it will be a breach of contract to disclose these publicly or take the provider to court over any wrongdoing.”

“Now our broadband providers will tell you they will never do these things,” Commissioner Jessica Rosenworcel said. “They say just trust us. But know this: They have the technical ability and business incentive to discriminate and manipulate your Internet traffic.”

Again, none of this has happened. Pai says the Internet flourished in the years leading up to 2015, before the Obama-era net neutrality regulations.

“Under this light-touch approach, the private sector invested in networks to the tune of $1.5 trillion. Internet speeds accelerated from kilobits to gigabits per second,” he said. “The Internet wasn’t broken in 2015. We were not living in a digital dystopia.”

An FCC spokeswoman, Tina Pelkey, said that “there is no evidence to support” claims that the Internet will slow down. She noted that the new rules keep “requiring ISPs to publicly disclose accurate information regarding the network management practices, performance, and commercial terms of its broadband Internet access services sufficient for consumers to make informed choices.”

Frederick Hill, a spokesman for the Senate Commerce Committee Republicans, and Sen. John Thune (R-S.D.), the committee chairman, referred us to an FCC chart showing a steady rise in Internet speeds from March 2011 to September 2015. (It measures median download speeds in megabits per second.)

“Driven by technology, the Internet has gotten faster even as regulations change, new users get connected, and the volume of Internet traffic balloons,” Hill said. “While Senator Thune shares concerns about the impact of regulatory back and forth on the Internet, pursuing bipartisan legislation to put net neutrality protections in place to end the uncertainty would be vastly more constructive than pushing false claims to politicize the issue.”

A Senate Democratic aide said that “the underlying fact is that without the net neutrality rule, ISPs will be free to charge consumers more for faster Internet, leaving many that cannot afford it with slower Internet speeds.”

The Pinocchio Test

The debate over net neutrality is reshaping the Internet and raising big-picture questions about modern life. But we can’t help but feel that we’ve spilled a lot of pixels here analyzing something that simply hasn’t happened.

Senate Democrats, industry leaders and net neutrality activists say the FCC’s move to toss out the Obama-era rules will bog down and end the Internet as we know it. The biggest broadband providers forcefully reject this claim, saying they have no plans to block or throttle content or offer paid prioritization.

That could change in time. As the D.C. Circuit said, broadband companies could make more money from paid prioritization, and it’s “common sense” to think they might try it. These providers have the ability and the incentive to slow down or speed up Internet traffic, and they’ve engaged in these practices in the past.

For now, though, there’s scant evidence that Internet users should brace for a slowdown. Yet the Democrats’ tweet conveys the false impression that a slowdown is imminent unless net neutrality rules are restored. This transmission error merits Three Pinocchios, but we will monitor the situation and update our ruling depending on whether the fears were overstated or came true.

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