Three questions on the end of net neutrality in the United States
Following the decision of the American FCC to return to the principle of net neutrality, I answered three questions asked by the Club des Juristes (to see my answers on the Blog of the Club des Juristes, click here).
What is the context of the FCC’s decision?
The principle of network (or net) neutrality means that Internet service providers only charge once for access and cannot act on the content by promoting, for example, their own content or those originating from partners who pay them. Everything that travels on the Internet should be treated equally, with the same speed. The term was first used in an article published in 2003 (Tim Wu, “Network Neutrality, Broadband Discrimination“, Journal of Telecommunications and High Technology Law, Flight. 2, p. 141, 2003).
The principle is however much older. Non-discrimination appears in Title II of the Communications Act of 1934 which gave competence to the Federal Communications Commission to regulate the activity of qualified telecommunications operators common carriers (public operators). The principle is simple: in exchange for the right to use a public good (the telephone network), operators agree to be subject to specific regulations and obligations. Since the democratization of broadband at the end of the 1990s, Internet service providers have fought fiercely not to be qualified as public operators and to avoid the application of Title II. It is precisely a new episode in this fight which has just been played out within the FCC.
From the end of the 1980s, the FCC, faced with the emergence of providers of new types of online services, gradually admitted that these “enhanced service providersWere not traditional telecommunications operators. In 2002, she qualified them as information services (information services) not subject to Title II. This decision was widely criticized because of the risk of abuse on the part of access providers, who could therefore block access to certain applications (which Madison River Communications did at the time).
The FCC rectified the situation in 2005 by voting a resolution (policy statement) proclaiming four principles ofOpen Internet for the benefit of consumers:
- right to access lawful content of their choice,
- right to use the applications and services of their choice,
- right to connect to any lawful tool that does not harm the network,
- right to choose their access providers, services, applications, content.
These rules ofOpen Internet, without binding force, did not prevent Comcast from blocking access to certain peer-to-peer applications (such as BitTorrent) without informing its users. The lawsuits against Comcast failed on appeal (Comcast v. FCC, 600 F.3d 642 (DC Cir. 2010)).
In 2010, the FCC adopted new rules forOpen Internet this time endowed with a binding scope. TheOpen Internet Order of 2010 compensated for the lack of submission of access providers to Title II by clearly prohibiting any blocking of content, any restriction of passage (throttling), any preferential treatment, and by imposing a principle of transparency. Contested by Verizon, this text was partly canceled in 2014 (Verizon v. FCC, 740 F.3d 623, DC Cir. 2014), on the grounds that most of its provisions could only be applied to public operators (common carriers).
Refusing to appeal this last decision, the FCC adopted, in 2015, a new Open Internet Order using the same principles as the previous one but expressly providing that Internet service providers constitute common carriers within the meaning of Title II of Communications Act, to which they are therefore subject. The federal courts have, this time, fully validated the text (USTA v. FCC, June 14 2016, DC Cir., No. 15-1063 et al.). The principle of neutrality therefore seemed acquired this time, especially since the FCC has also taken the habit of subordinating its approval of mergers to its respect (for example during the merger between AT&T and DirecTV).
What should happen now?
On December 14, the FCC voted to repeal theOpen Internet Order of 2015. This turnaround should be judicially challenged on the grounds that the federal regulatory authorities cannot, according to theAdministrative Procedure Act, conduct “arbitrary and capricious” policies (arbitrary and capricious). They may, however, change their minds if they are able to justify themselves. However, the FCC’s decision contains reasons, including the allegation that the principle of neutrality would hamper investment in broadband, even if it is also based on the many false anti-neutrality comments posted by bots on its site. .
The possibility of a Congress resolution thwarting the FCC’s decision is also mentioned, a scenario which is however unlikely given the Republican majority in the chambers. Some states, such as California, could finally attempt to adopt legislation requiring neutrality, but state rules cannot, in principle, contradict a federal rule.
Access providers will therefore be able to modulate the speed on the network, adopt tariffs depending on traffic and develop content management strategies, such as “zero rating” or slowing down access to certain services (which AT&T did this in 2009 with FaceTime and Skype). This time users must be informed, in accordance with the principle of transparency.
Can the FCC’s decision have consequences in Europe or in France?
Judging by the reaction of the French authorities to the FCC’s decision, there is little chance that France will renounce the principle of network neutrality, enshrined in French law by Law No. 2016- 1321 of October 7, 2016 for a digital Republic (article L. 33-1 code of posts and electronic communications). French law also refers to European Regulation 2015/2120 of 25 November 2015 on the open Internet which proclaims the principle of neutrality in its article 3. The Body of European Regulators for Electronic Communications (Berec), responsible for ensuring compliance with the principle, published guidelines on this subject on August 30, 2016. A questioning of the principle is therefore not on the agenda in Europe, even if the decision to the FCC could serve as an argument for European access providers wishing to remove or modify it.
Florence G’sell (www.gsell.tech) is a private law associate and professor at the University of Lorraine where she mainly teaches law of obligations, business law and comparative law. A graduate of Sciences Po Paris, where she has been teaching for several years, she began her career in the American subsidiary of a French bank before joining an insurance company specializing in the coverage of major industrial risks, then choosing the university path. . Her research focuses mainly on business law, private law, dispute resolution methods and new technologies, which she approaches in a comparative manner, in the light of the rights of Common Law, including US law.