On May 15, 2014, the American Federal Communications Commission (FCC) adopted a new set of rules, putting an end to net neutrality in the United States. These new rules aim at protecting an open and neutral Internet said Tim Wheeler, chairman of the FCC. Internet service providers (ISPs) will be able to offer premium services to content providers to allow them a faster access to broadband. This is meant to prevent ISPs from slowing down the broadband traffic.
The FCC’s newly adopted regulation directly violates the net neutrality principle. “Net neutrality” is an expression coined by Tim Wu, in 2003,to describe the principle that all internet content should be treated equally. This principle also ensures that all Internet connections are free from surveillance. You can read more about the origins and content of net neutrality (with a focus on France and Europe) here.
Up until the beginning of the year, the FCC fervently defended net neutrality and tried to impose it to ISPs. However, in January 2014, the Court of Appeal of Washington ruled that the FCC lacked the authority to impose such a principle (see article on the topic here). Since then, the FCC seems to have given in to the ISP lobby by allowing them to set up a lucrative business model.
This “Protecting and Promoting the Open Internet” regulation allows ISPs to offer premium access to the broadband to service providers willing to pay extra. Such a measure was justified by the need to regulate the broadband in order to limit traffic congestion. This rule will be implemented by enabling ISP to conclude contracts with telecommunication operators and content providers. However, the FCC will analyse these agreements case-by-case to ensure the customers’ protection and free competition in general. The Commission stresses the importance of transparency in its control and in the relationship between ISPs and customers.
However, several issues arise from the FCC’s new rules. First, they seem to contravene directly to the net neutrality principle by discriminating Internet content based on its origin. This discrimination can be argued and justified by the necessity and proportionality of the response, the traffic management. Secondly, allowing particular content to be treated differently implies knowledge of where and when that content is accessed by the user. Therefore, discrimination between packets of content means the internet users’ connections are tracked.
What risks do these new rules entail? The main risk is the discrimination between users based on their financial means. The freedom of information should in no way be proportional to one’s income. Also, the management of the broadband by ISP puts free competition in jeopardy. Their control will allow them to favour their own services over those of their competitors. Finally, this regulation might limit the freedom of information of internet users by controlling what they can access, as a sort of censorship.
Over 150 companies related to the Internet signed an open letter to the FCC asking the Commission to protect net neutrality. A somewhat unsatisfactory answer was given by Chairman Wheeler, saying the measures will still be set up but emphasising on the case-by-case analysis before the approval of any measure. The bill was still voted but luckily, these rules are not final yet, a comment period has begun.
The adoption of this new regulation widens the gap between the USA and the European Union which recently voted in favour of the consecration of net neutrality. The ISP lobbies have won a major battle against net neutrality in the USA, but they have not yet won the war.


Marine OGIER
Étudiante en M2 Droit de l’Économie Numérique, passionnée de nouvelles technologies, d’informatique et le droit qui les encadre
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