New FCC Rules Signal a Shift From Net Neutrality to User Neutrality
Ability to withstand opposition from powerful ISPs will determine the success of these rules.
By Zsuzsa Detrekoi
The internet ecosystem operates as a dynamic marketplace, with content providers offering their products and services online, internet service providers facilitating the flow of traffic, and users consuming those services and contents.
In order to maintain balance within this dynamic triangle, regulators have taken a stance on the issue of what is known as “Net Neutrality” to prevent internet service providers from engaging in discriminatory practices against content and service providers. The main objective of implementing Net Neutrality rules is to guarantee a neutral net infrastructure, effectively prohibiting internet service providers from obstructing, impeding, or favoring specific traffic. These regulations dictate that any traffic management measures must be fair, transparent, impartial, and proportionate, all while considering objective technical distinctions.
The saga of Net Neutrality regulations in the United States began roughly in 2007 amidst a series of contentious debates and conflicting rulings over which entity possesses the power to oversee the nation’s internet service providers (ISPs). Despite all those efforts, the US has yet to designate ISPs as common carriers under Title II of the Communications Act, a move that would grant the Federal Communications Commission (FCC), the media and tech regulator in the U.S., the ability to prevent discriminatory practices by those providers. In contrast, numerous countries including several European nations, India, and Brazil, have embraced robust regulations aimed at preserving a fair and unbiased internet.
Yet, in a significant development, the FCC adopted last November a new set of rules with the objective of curbing discriminatory practices by ISPs towards customers. This move comes despite the challenges faced by the FCC in its authority to prevent ISPs from discriminating between content and service providers. The newly adopted rules are rooted in the Biden Administration’s 2021 Bipartisan Infrastructure Law, which mandates the FCC to establish and implement measures to combat digital discrimination.
According to a report issued last year, ISPs such as AT&T and Verizon in America have been found to offer varying internet speeds based on the neighborhood. This means that customers living in lower-income or non-white neighborhoods may have access to slower internet speeds, despite paying the same price as those in other areas with faster speeds. In a speech, Jessica Rosenworcel, the Chairwoman of the FCC, highlighted this issue by stating, “It shows that minority status and income correlate with broadband access.” The FCC’s recently introduced rules are aimed to address these concerns. The agency plans to investigate alleged discriminatory practices, both those motivated by discriminatory intent and those resulting in discriminatory effects. This includes examining actions based on income level, race, ethnicity, color, religion, or national origin. Additionally, the FCC aims to establish a dedicated pathway for addressing complaints related to digital discrimination of access.
If the rules remain in effect and are not challenged by major ISPs, as was seen with previous Net Neutrality orders, it will limit the ability of ISPs to control their offerings. Marking a shift from Net Neutrality to User Neutrality, the FCC’s new rules represent a significant progression. By tackling discriminatory practices that impact users based on factors such as income and race, the FCC aims to establish a fairer digital environment. The success of these rules will rely on their effective implementation and the ability to withstand potential opposition from powerful ISPs, underscoring the delicate balance between regulatory intervention and industry interests.
Zsuzsa Detrekoi is a technology and law expert with the Media and Journalism Research Center.
