ISPs' COVID Response Said To Negate Net Neutrality Rules

By Kelcee Griffis
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Law360 (April 9, 2020, 10:09 PM EDT) -- Generous actions from internet service providers during the coronavirus pandemic prove that broad, now-repealed net neutrality rules were always unnecessary, an economist said Thursday during a webinar hosted by the conservative legal group Committee for Justice.

Roslyn Layton, a visiting fellow at the American Enterprise Institute, said that service providers’ offers to waive cancellations and fees while many Americans are struggling financially demonstrates that ISPs are acting with customers’ best interests in mind and do not require close government oversight.

“We have the evidence that we need that there is not the systematic harm that necessitates this kind of regime,” Layton said.

Layton was referring to the Obama FCC’s 2015 net neutrality rules, which were designed to ensure that ISPs didn’t abuse their power over internet traffic by blocking, slowing or interfering with transmissions. In 2017, the Republican FCC decided the rules inhibited ISPs’ network investment and effectively said the companies could be trusted with less stringent oversight.

“Freedom is so essentially tied into so many aspects of our American character,” said Free State Foundation president Randolph J. May during the webinar. “The freedom that was restored for the internet service providers plays a very important role in terms of fostering innovation and investment.”

In October, the D.C. Circuit upheld the bulk of the FCC deregulation, but it asked the agency to clarify three points of the order. The FCC is now asking commenters to weigh in on whether and how the FCC policy changes affect public safety organizations, low-income consumers and internet infrastructure.

According to Layton, the D.C. Circuit correctly affirmed that a lighter-touch, so-called Title I regulatory framework is a better fit for ISPs because there is no evidence that they systematically degrade consumers’ internet experience.

For example, she pointed to more than 600 ISPs that pledged to keep up service for customers even if their accounts become delinquent, waive late payment fees and open Wi-Fi hotspots to anyone who needs them during the coronavirus outbreak.

When viewed through an economic lens, Layton said, net neutrality rules actually impose price controls on end users, implying that end users must bear all costs for internet service instead of distributing those costs to bandwidth-sucking content providers like Netflix. “It’s very anti-consumer, totally pro-industry,” Layton said.

Comments on the remanded deregulatory regime are due April 20, and reply comments will be due in May. In the meantime, interested parties are continuing to share their thoughts with the FCC about some of the deregulation’s ripple effects.

Contrary to Layton’s views, the Benton Institute for Broadband & Society wrote in a March 31 comment that ISPs need even more stringent oversight now, when people are leaning on their internet connections more than ever.

“The Commission should use existing authority to collect daily reports from broadband providers so it can study national broadband network operations and share appropriate data with the public,” according to the group.

--Additional reporting by Anne Cullen. Editing by Peter Rozovsky.

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