Lipton – ‘Net Neutrality’

Feb. 5, 2014 - Jacqueline LiptonThe U.S. Court of Appeals for the District of Columbia recently struck down a federal regulation requiring cable providers to adhere to “net neutrality,” offering the same level of service to all Internet companies. The Jan. 14 ruling opens the door for Internet providers to “prioritize,” or play favorites, with companies willing to pay a premium for greater speed and quality. Jacqueline Lipton, Baker Botts Professor of Law and co-director of the Institute for Intellectual Property and Information Law at the Law Center, is a recognized authority on Internet law. She explains the ruling and what it likely will mean for Internet users.

 Q.)   What is the concept of “net neutrality” about?
Net Neutrality is about ensuring that those who provide the backbone for people to access online content don't have different rules for different kinds of content. In other words, the speed, quality, and accessibility for all content should be uniform and service providers shouldn't prioritize some content over others. For example, under a network neutrality paradigm, Internet customers should be able to access content from all services (Amazon, Netflix, various file-sharing services etc.) equally in terms of speed and quality, so a cable provider shouldn't give faster or better service to customers using say Netflix streaming video over Amazon video services.

Q.)   What did the federal court rule and what is significance of this ruling?
The federal court struck down an FCC regulation that ensured net neutrality, thus technically allowing cable providers to prioritize certain content over other content. Internet service providers are classified differently than telephone service providers under the FCC categorization scheme. The court held that the network neutrality rules were inconsistent with the classification system because the FCC was arguably regulating Internet service providers as if they were telephone service providers and over-regulating them in their attempt to ensure net neutrality.

Q.)   What does this mean for consumers?
If Internet service providers decide to prioritize some content over other content, customers could find that they can't get the speed/level of service for particular content that they have enjoyed up until now, despite paying for high quality broadband service. If one video streaming service (e.g. Amazon) is prioritized over another (e.g. Netflix), customers paying the same for broadband access may have more trouble and slower speeds accessing Netflix than Amazon.

Q.)   What are we likely to see next?
It's unclear. The FCC could appeal the ruling, although this seems unlikely. They could change the classification system in general so that Internet service providers can be regulated more like telephone services. But again this is unlikely because it would contradict existing classification policies which were made after lengthy consideration. It's really up to the Internet service providers now to make decisions about how, and to what extent, they will alter their current provision of services in light of the decision.