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Net Neutrality Won't Be Our Last Fight For The Future Of The Internet

Let's hope for a victory over Ajit Pai's FCC order. But let's not forget to plan for the other battles we'll be fighting — in both Canada and the U.S.

12/13/2017 16:54 EST | Updated 12/13/2017 16:55 EST

Ajit Pai, Chairman of the Federal Communications Commission, has a "fix" for the internet that sets new records for doublespeak, hypocrisy and brazen contempt for evidence.

On Thursday, his draft order — wittily entitled "Restoring Internet Freedom" — is likely to be blessed by the FCC's Republican majority despite massive opposition from activists, tech leaders (including the internet founders), the public at large and even some Republican lawmakers.

Bloomberg via Getty Images
Ajit Pai, chairman of the U.S. Federal Communications Commission, speaks during an open meeting in Washington, D.C. on Nov. 16, 2017.

If it does pass, Pai will realize what seems to be his heartfelt goal: eradicating the rules established by his predecessor, Democratic chairman Tom Wheeler, which were designed to safeguard internet access through the protections afforded by network neutrality (known as the Open Internet Order, launched by the FCC in 2015).

The battle to challenge Pai's order and save net neutrality is well under way. But even if the battle succeeds, that by itself won't accomplish what we ultimately hope for: an open internet used by everyonein the way that best suits their needs. The fundamental issues go much deeper than the current debate.

The problem starts with Pai's campaign to discredit the legal underpinnings of the pro-neutrality rules, which rest on a wonkish legislative item called "Title II." These provisions were created decades ago to guide FCC regulation of basic telephone service, establish the bedrock principle of universality and protect consumers from the predations of AT&T. Title II gave citizens the right to a lifeline communications service, much like the right to other utility-type services such as electric power.

That was a hard-won and meaningful victory for the public interest.

Meanwhile, Pai and his post-truth backers have heaped scorn on the Title II provisions as tools for the technology of a bygone era — your grandpa's rotary-dial telephone. The defunct telephone meme is a clever ruse. It's helped forestall any real discussion as to whether broadband has replaced the humble telephone as the citizen's lifeline for the 21st century.

We've had some experience with this very question in Canada. Through 2015-16, our regulator, the CRTC, held a proceeding on what's meant by a "basic" telecom service (I was involved as a consultant to advocacy group OpenMedia.) Last December the CRTC decreed that, yes, broadband access to the internet shall henceforth be considered a basic, i.e. essential service. And it did so not merely to ensure Canadians can keep streaming their favourite movies online — but to ensure the future prosperity of the entire digital economy.

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That was a hard-won and meaningful victory for the public interest. But neither this victory in Canada, nor the protests raging in the United States, should raise false hopes. Net neutrality is not the endgame, and neutrality protections alone cannot fix what ails broadband in North America. First of all, despite their importance for people who have home access, neutrality protections can't help anyone who does not have it.

Then there's the money. Last year, two colleagues and I prepared a study for the CRTC on affordability in telecommunications. One of our major findings was consumers themselves treat broadband as an essential service — even in the face of steadily rising ISP rates and the need to sacrifice other essentials, including food. In other words, broadband is so important today that millions feel obliged to keep paying whatever the market imposes — and whatever the Pai gang thinks of "heavy-handed" legal niceties like Title II. Even though Canada and the U.S. have some of the highest broadband prices in the developed world, we've seen few efforts to address affordability as a barrier to internet access and use.

Canadian and American ISPs operate in a market almost entirely unregulated as to consumer protections, price and service quality standards — and devoid of meaningful competition. That's left the big ISPs free to raise rates at will and weaponize data caps to bring in extra revenues. There's good evidence most consumers don't understand caps or how to manage them — and that caps create both financial and psychological barriers for Internet users, especially in low-income households. Unfortunately, neutrality protections themselves cannot alleviate the damage this anti-consumer behavior has inflicted.

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This economic problem is about to get much worse. Even without Pai's noble restoration of so-called internet freedom, one Wall Street analyst is already predicting broadband rates may double in the next year or two. On top of that, imagine the incumbent ISPs — Comcast, Verizon, etc. — "cable-izing" the internet by tacking on extra fees for the privilege of getting to your favourite websites. If that comes to pass in the U.S., a precedent like that is bound to encourage Canadian incumbents like Bell and Rogers to try out the same creative revenue models. With predictable long-term effects in both countries: low-income households will be further disenfranchised, small businesses will be unable to compete and the digital divide will widen.

But broadband in North America isn't just overpriced. It's also a pig in a poke. ISPs have no obligation to provide anything more than speeds "up to" what you're paying for. Since most people have no idea what they are actually paying for (in those mysterious megabits per second), this "information asymmetry" promotes price-gouging and allows ISPs to provide as little bandwidth as they like. In other words, ISP "slow lanes" are already a feature of the American broadband landscape, whatever the ultimate fate of net neutrality.

ISPs have no obligation to provide anything more than speeds "up to" what you're paying for.

Canada has so far been spared the worst excesses of this "free market" behaviour. But the CRTC's online consumer protections are less than perfect. It has, for example, left a number of worrisome loopholes in its ban on the practice of zero-rating (not charging for data consumed using services in which ISPs have a financial interest) that should discourage Canadians from becoming too complacent about our net neutrality edge.

By all means, let's hope for a victory over the Pai order. But let's not forget to plan for the other battles we'll be fighting — in both Canada and the United States — before we can all enjoy the long-held promise of humankind's greatest engineering achievement.

David Ellis is a telecommunications consultant who teaches at York University in Toronto.

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