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.
DISCLAIMER
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.
