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Two Santa Clara Law professors see risks in repealing the 2015 Open Internet Order.

The Federal Communications Commission has promised that at its  Dec. 14 meeting, it will repeal “Net Neutrality”—the 2015 Open Internet Order issued under the Obama Administration’s FCC Chairman, Tom Wheeler.

Under that order, Internet Service Providers (ISPs) like Comcast or Verizon were forbidden from blocking or slowing down Internet speed or access for certain types of users. They also could not engage in “paid prioritization,” allowing some users to pay extra for the best speeds or first right of access on the Internet—like amusement park visitors paying extra to cut to the front of the roller coaster line. The concern was that doing so would unfairly slow access for others, or make other Internet communications fail.

Under Wheeler’s view, ISPs should be regulated like utility companies—because they hold special control over the public’s “right of way” to a vital civic asset (the Internet) much like phone companies controlled access to land line telephones. That, in turn, means they must abide by certain telecom or communication laws that ensure fairness.

The new FCC Chairman, Ajit Pai, a former lawyer for Verizon, has a different view. He has called the 2015 order “heavy handed” and vowed to release ISPs from regulation under the communication laws. He says the Federal Trade Commission, not the FCC, should police any abuses by ISPs, and that competition and innovation will ensure all users continue to have Internet access.

That’s not how Santa Clara University School of Law professors Allen Hammond, IV and Catherine Sandoval see things.

Hammond, director of the Broadband Institute of California who formerly managed access policy for the Carter White House, and Sandoval, an antitrust expert who formerly served on the California Public Utilities Commission, recently sat down to discuss what they see as the dire perils of repealing Net Neutrality.

Risk #1: Paid Prioritization.

Top of mind for both professors was the risk that ISPs like Comcast or Verizon will now be free to engage in paid prioritization arrangements. The FCC would allow ISPs to seek higher fees for top-tier access from both Internet users and from “edge” providers who distribute content on the Internet—be it Netflix, YouTube, a healthcare provider who uses Internet to access medical records, public safety officials, or a professor’s Internet-streamed lecture.  What, the professors wonder, will that mean for Internet users who don’t or can’t pay extra to give their information priority speed or access? Could the ISPs essentially force police, fire, or school districts to pay for priority, just to ensure they can continue to do their civic duties over the Internet? Even worse, what if the person buying the priority access is a deep-pocketed foreign enemy, seeking to degrade Internet access in certain areas?

Sandoval: As we see the character of the internet changing, there seems to be this idea of well, “We're just blocking video and it’s all entertainment.” Well increasingly, it’s not just entertainment. How many fields has the Internet become really embedded in and central to? It’s actually harder to name a field that is not dependent on the internet. Education, health, and democracy are increasingly intertwined with the Internet. And democracy is not just a voting booth. It’s public opinion and debate leading up to that. Agriculture, energy, water, buildings, manufacturing, non-profits and security from the individual level to national security, government— all depend on the Internet. Again, it's harder to name a sector that doesn't use the internet.

The FCC’s proposal allows ISPs to decide who could buy paid prioritization and on what terms. ISPs could sell priority on differential terms to different people, while refusing to sell priority to others, at their discretion. Several ISPs cited the prospect of paid Internet priority deals for autonomous vehicles, for example. But they made no promises that such priority deals won’t degrade nearby Internet users. This raises concerns for reliability, access, and even safety for schools, government, or critical facilities.

Risk #2: Free Speech access.

Another risk is that, much like Citizens United which gave vast powers to corporations to use their wealth to influence political campaigns, repealing Net Neutrality will enable ISPs to control the flow of information—potentially stifling information they don’t want aired for competitive, political or other reasons.

Hammond: My fear is that by repealing the Open Internet rules we will finally have done what we’ve managed to avoid doing historically, which is allow the common carriers (ISPs) to be “speakers”— not just to determine access but to be speakers and therefore to make the First Amendment available to them. That puts them in a situation where they not only physically facilitate the flow of information but have justification for controlling its content, because they’re the editors. The FCC’s failures to consider the impacts of its proposal on free speech and democracy are, however, legal issues that I predict will be litigated under the Administrative Procedures Act and the First Amendment.

Risk #3. Public safety.

Another concern is that more and more policing, community alerts, and monitoring of vital civic functions takes place over the Internet. Shouldn’t someone other than a private company, an ISP, ensure they have full ability to function?

Sandoval: The Internet is critical to energy management and protection of people and the environment. For example, when energy demand is too high or there’s not enough energy generation, California’s energy grid operator calls on Internet-connected energy resources to reduce demand to prevent blackouts. When that happens, if energy use isn’t reduced within 20 minutes,  they’ve got another 10 minutes to take demand-reduction action including initiating blackouts. Interference with such demand reduction may increase reliance on climate-damaging fossil-fueled energy, including increased use of diesel generators that emit black carbon. Blackouts also cause traffic accidents, put people who need electricity for health care at risk, and cause other harms. So paid Internet priority can harm public safety, electrical reliability, and the environment, while increasing energy and other costs. The antitrust and unfair competition laws that the FCC says are sufficient only provide remedies for injuries to competition. They offer no remedies for harms to electric reliability, safety, the environment, national security, and other values the FCC’s 2015 Open Internet Order protects.

Risk #4. Democracy.

Sandoval: When we think about democracy, often there’s focus on what happens at the voting booth, but democracy is not just one minute of action at the voting booth. It’s all the democratic debate and public opinion-making leading up to that.  And so, especially where there are no rules that prevent paid prioritization from degrading other Internet user’s communications, you can imagine this happening strategically—where deep pockets, including foreign adversaries, could buy Internet priority. They may buy priority in locations they believe to be sensitive, or time periods like right before an election, possibly blocking out opposing voices or points of view.  The FCC’s draft order offers no protection against such degradation, and dismisses concerns about the impact of its proposals on democracy.

Hammond: Under the open internet rules the nation’s residents have had continued access to the thoughts, experiences, and concerns of their fellow residents. Repeal of the rules affects access and expression. You could have an ISP blocking information about a protest in another neighborhood, another city, another state, or another country. This could return us to an era in which a handful of media corporations choose what is important to know, who is entitled to know it, and who can be dismissed as unimportant and consequently unknown. Such a result has inherent dangers for a diverse democracy like ours.  

Sandoval: The FCC’s proposals provide no safeguards against nefarious use of paid priority, impose no restrictions on who—foreign or domestic—could buy such priority, and place no limits on the deal’s purpose. The ISP would have to inform users that it sells paid priority, but would not be required to disclose the deals, the consequences of paid priority to other Internet users, or be required to offer paid priority to all users on the same terms.  As evidence has mounted of foreign interference in the U.S. elections, paid priority adds a new layer of concern that will undoubtedly be litigated once the FCC repeals net neutrality protections.

Risk # 5. E-Commerce

If reliable and fast Internet access becomes essentially available to the highest bidder, an entire industry that 79 percent of Americans use—e-commerce—is at risk.

Hammond: Repeal of the open internet rules risks undermining the vibrant e-commerce the current policies engender. Sales on the web reached $394.86 billion in 2016, a 15.6 percent increase over 2015 and the highest growth rate since 2013. According to more than 200 Silicon Valley companies who wrote the FCC in support of net neutrality, strong net neutrality protections assure that the internet remains “an open marketplace where any business can compete, allowing individuals to start companies easily, market their products across the country, and connect with customers anywhere worldwide.”