Net Neutrality Repeal Increases Uncertainty in ‘Last-Mile’ Efforts

By Upstateherd (Own work) [CC BY-SA 4.0 (], via Wikimedia Commons

By Christine Lytwynec
Boston University Statehouse Program

This article was originally published in the Daily Hampshire Gazette

BOSTON — As rural communities in western Massachusetts struggle to complete the “last mile” to create municipal broadband service, the Federal Communications Commission has created uncertainty about the future of accessible and equitable internet access with the repeal of net neutrality regulations.

The 2015 rules targeted three main concepts: blocking, throttling and prioritization of network traffic. It used to be illegal for internet service providers to intentionally vary the speed or quality of service based on where content is going or where it comes from, with exceptions for special circumstances like “tailored network security practices.” Additionally, broadband providers were forbidden from accepting payment “to manage its network in a way that benefits particular content, applications, services, or devices.”

Those Obama-era net neutrality rules were swept away in a December vote led by Republican FCC Chairman Ajit Pai. Republicans had argued the rules were too restrictive for the industry, while Democrats said they provided a vital consumer protection.

The FCC decision has set off a scramble in states to see what, if anything, can be done locally to improve internet access, particularly in less-populated rural areas.

In Massachusetts, a Senate Special Committee on Net Neutrality and Consumer Protection recently heard from experts, net neutrality advocates, and internet industry representatives. The hearing was part of an information gathering phase in the process of developing a state-level policy.

“If the states do nothing, then that leaves internet companies open to make discriminatory decisions about what customers can see and what they can’t,” Sen. Eric Lesser, D-Longmeadow, said in an interview.

“We’ve gotten a lot of calls and a lot of emails … People are trying to figure out what this is going to mean,” Lesser said. “It’s very scary that there would be some sort of Big Brother figure that would control what sort of content got to them.”

Communities take the lead

For the last 15 years, Kimberly Longey, founder and COO of Free Press and a longtime resident of Plainfield, has been working to improve internet access in the Hilltowns.

She said that government investments and incentives has helped to create the “middle mile” of internet infrastructure with a ring of fiber lines around the state, an effort that in theory should lower the investment barrier in underserved regions and provide incentives to internet providers to build the “last mile” lines for high-speed internet.

The reality is different.

“No amount of incentivization has created access, we’re needing to do it ourselves,” said Longey. “More and more municipal leaders understand that this is not a luxury anymore. This is a basic public service and their communities will thrive or not thrive based on access to this service. More communities are looking for a solution.”

Twenty-one western Massachusetts towns have joined in an effort to create municipal internet availability in their communities, according to Longey. When the infrastructure is complete, the towns will look to contract an ISP to serve the community.

Challenges for small towns

That is where concern about net neutrality regulations arises. With an already limited market of providers in the region, she said it will be difficult for municipalities to ensure that the provider of their municipal internet follows net neutrality principles.

It’s about “the ability to ensure that wherever you want to go, whatever you want to view will not require premium costs, will not be unfairly slowed down, blocked or discriminated against,” Longey said. “What we are looking for is a healthy and competitive market which will keep prices affordable for folks.”

The primary opponents of net neutrality are broadband providers. Two people representing a number of ISPs at the Statehouse hearing said that the 2015 FCC order placed an undue regulatory burden on the companies, stifling innovation.

“We don’t see a need for state legislation in this area. We do feel that a federal legislative solution is necessary, so that we don’t have, when administrations change at the federal level, this regulatory back-and-forth. We need one final federal legislative solution and that’s what we are advocating for,” said Gerry Keegan, of CTIA, a trade association that represents several wireless industry companies.

Keegan said that a “patchwork of differing state laws that (telecomm companies) are going to have to try to comply with … could really harm the innovation that occurs in this sector.”

Boston College law professor Daniel Lyons said that a state-level net neutrality law would likely be contested for violating a pre-emption of state laws that conflict with the federal deregulatory order.

The recently overturned FCC rules on internet service providers was largely intended to prevent the “fast lanes” on the internet that Longey alluded to.

In a 3-2 vote in December along party lines, the FCC reset the rules so internet providers could now legally serve a user Netflix content at one speed and Hulu content at another.

That concerns net neutrality supporters looking at the broader implications of the changes.

“Ending net neutrality would be bad for students, bad for businesses, and bad for everyone that goes online,” Massachusetts Attorney General Maura Healey testified. “I think about net neutrality as a measure necessary to prevent discrimination on the internet.

“I don’t think that drawing a distinction between rich and poor is the way to go. I think that this is basically a service that’s got to be open and accessible to everybody, and that’s for the sake of our marketplace and for the sake of fairness to everybody out there,” said Healey, who joined a group of 22 attorneys general in a lawsuit contesting the legal grounds of the repeal.

“I know there are some places within the state where we’re still working to get greater access to the internet — we’ve got to do that — but let’s operate on the premise that everybody’s going to need to have access to the internet. And that should be open and it should be equal,” said Healey.

Few choices in rural areas

Matt Wood, a policy director at the Free Press, explained that rural areas of Massachusetts still lack choices for wired, high-speed internet. There are often only one or two options, if any, leaving rural areas more dependent on mobile internet providers, internet service via telephone lines, or satellite service

David Choffnes, a Northeastern University professor who studies computer networking, explained why those relying on mobile providers for internet access ought to be concerned.

“Every major U.S. carrier — with the exception of Sprint — we’ve seen them throttling video,” Choffnes told the panel. “Additionally, only video they choose to detect, so there are certain video providers that are not affected by this.”

He found that the providers used throttling “24/7, regardless of whether the network is overloaded or not.”

“Essentially all of the power is in the hands of telecom providers,” Choffnes added.

Others expressed concern that, because ISPs could charge more for access to certain types of content, customers and content providers could see higher bills or lose access to certain services. Local businesses may not be able to pay for preferred treatment of their site. Costs of services that business rely on, like payment systems, could reflect behind-the-scenes deals with ISPs for serving their service faster than the competitions.

“The problem is that ISPs … have the ability to leverage their capacity as gatekeepers and charge money at non-market-based rates to transit providers,” said Sarah Morris, director of Open Internet Policy for New America’s Open Technology Institute. “The reason they were able to do this, as we discovered in 2013 and 2014, is that they were simply allowing those handoff points … to artificially congest.”

While opponents of the now repealed net neutrality regulations argued that imposing rules is unnecessary because of existing antitrust and consumer protection laws, Sen. Michael Barrett, D-Lexington, expressed concern that the existing protections are insufficient because the options for filing complaints are expensive and can take years to be resolved.

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