Bobby Yip / Reuters Children try out Samsung laptops at a Samsung D'light showroom in Seoul, March 27, 2012.

The Future of Net Neutrality

What the Court Will Decide

For almost a decade, net neutrality, or the equal treatment of all websites by Internet Service Providers (ISPs), has been one of the most contentious technology policy issues in the United States. On one side, ISPs have argued that websites that want priority of service should be able to pay for it, much as first-class flyers or FedEx customers pay for better or quicker service. On the other side are most web-based content providers, which want to be treated equally.

In 2010, the Federal Communications Commission (FCC) issued rules under Section 706 of the Communications Act of 1934 that endorsed broad principles of net neutrality but stopped short of a blanket ban on paid priority. Complaints against ISPs, the rules clarified, were to be adjudicated on a case-by-case basis, with the presumption that any arrangement in which a website paid for premium service would violate the FCC’s new rules.

After a legal challenge brought by Verizon in January 2014, the U.S. Court of Appeals for the D.C. Circuit overturned the rules, finding them to be tantamount to common carriage, which obligates carriers to furnish service to all comers at reasonable and nondiscriminatory rates. The court left the FCC with two paths. It could reverse the presumption that paying for service would violate FCC rules and place the initial burden of proof instead on the complaining content provider—all while continuing to ground the rules under 706. Or it could leave the presumption in place and ground the rules under the tougher regulatory system envisioned by Title II of the Communications Act, meant to apply to common carrier monopolies, such as the old AT&T.

The FCC opted for the first, and got to work readying a new set of rules. But in February 2015, after U.S. President Barack Obama all but ordered the independent commission to change course, it opted for a third path: new rules under Title II. These new rules jettisoned the case-by-case process and established a full prohibition on paid

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