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Navigating Net Neutrality's Conflicting Interests

(Note: This post previously appeared as a guest blog post on IUS&VITA.)

Last year, the Federal Communications Commission (FCC) released an order for the

purpose of protecting the Open Internet. In doing so, it reclassified broadband service as a

Title II telecommunications service and established a “general conduct rule . . . to stop

new and novel threats to the Internet.” Specifically, under this standard, service providers

cannot “unreasonably interfere with or unreasonably disadvantage” end users’ access.

Now, the FCC is trying to work with internet service providers (ISPs) and mobile

providers such as Comcast, T­Mobile, and AT&T to discuss their practices with respect

to net neutrality. The FCC emphasizes that it is not conducting an investigation, but

rather entering in “direct dialogue with companies” in order to “watch and learn.”

Why it matters

The FCC is meeting with these companies because they engage in practices that generate

conflicting interests, such as consumer access to information and services, governmental

interest in regulation, and service providers’ market competition.

A seemingly­common practice is zero­rating for providers’ own services. This method

creates exemptions for customers from data caps and overages, essentially incentivizing

them to use the company’s service and disincentivizing them to use other’s services. In

other words, when customers use certain services, that usage does not count against their

data usage limits; however, customers’ use of third­party services may cost them data.

Another practice in question is throttling, which limits internet speed based on the type of

service the customer is using.

The public must be aware of these practices because they affect access to information and

services, accuracy of data usage, and price increases for customers. First, open access to

the internet allows for access to information and services that may not otherwise be

available, particularly as many regions of the United States have only one viable option

for an ISP. Second, it can be difficult to diagnose and address situations in which

consumers are overcharged for exceeding their data caps. Lastly, the resulting

competition is placing a higher financial burden on consumers. This phenomenon can be

seen, for example, where ISPs are also cable providers; cable television consumption is

decreasing, and so these companies are finding new ways to charge higher fees for

internet service.

An offensive strategy

In an effort help customers, and arguably to boost its image in the face of observations

that it is overtaking internet traffic, Netflix has been developing “per­title encoding,”

which analyzes content and reallocates bitrates based on the complexity. The level of

complexity is based on numerous factors, such as flatness versus multidimensional

images, amount of motion between frames, and speed of onscreen subjects. For example,

animated television shows may be allocated with lower bitrates, while an action­packed

film may receive higher bitrates, similar to the bitrates they have now. This strategy

supports consumer interest in lowering data usage, particularly for customers subject to

data caps by their ISPs. However, Netflix is also notorious for using a significant portion

of bandwidth available, particularly during peak viewing hours. This phenomenon may

be hurting other online competition.

Questions to consider

All of these competing interests ­­ government, service providers, and consumers ­­

create complex questions about what net neutrality will look like in the future amidst a

competitive market of various monopolies. What are the ethical ramifications of the

FCC’s standard and the provider’s practices? Do these practices support or undermine net

neutrality? Do practices like Netflix’s per­title encoding actually help balance interests?

The FCC’s response after their meetings, if any, with the respective service providers will

provide additional perspective on the direction these concerns will take.


This blog post is made available for educational purposes, as well as to provide general

information and a general understanding of the law only. It does not provide any legal

advice or represent the views of the Wikimedia Foundation or any other such entity.

By using this blog site you understand that there is no attorney­client relationship

between you and Anisha Mangalick. This blog should not be used as a substitute for

competent legal advice from a licensed attorney in your state.

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