Net Neutrality Starts With a Whimper

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It has been a quiet first two weeks for net neutrality.

While the Federal Communications Commission’s new rules governing Internet providers like utilities are now in effect, consumers are unlikely to have noticed.

And so far, just a single complaint has been filed against an Internet provider for violating the net neutrality order’s ban on paid prioritization, which is when a provider favors the traffic of a service that pays them.

But many regard that complaint — filed by San Diego based Commercial Network Services against Time Warner Cable — as unlikely to succeed.

Other than the Time Warner complaint, the only action related to net neutrality at the FCC in the last two weeks was a petition that referenced new privacy rules that will be enforced against Internet providers. But the filing by Consumer Watchdog concerned edge providers, including companies such as Google and Facebook, and simply uses the net neutrality order as a point of reference.

It’s a far cry from the clamor that preceded the implementation of the rules.

When the rules were approved, Ajit Pai, one of the commission’s Republican members and a vocal critic of chairman Tom Wheeler, decried the net neutrality order as an “unprecedented attempt to replace [freedom on the Internet] with government control.”

Sen. Ted Cruz (R-Texas), now a presidential candidate, warned in November that the administration was hatching “ObamaCare for the Internet,” and Sen. Rand Paul (R-Ky.) introduced legislation blocking the rules in April.

One of the reasons for the quiet rollout of the rules is that companies are on guard against violating them.

For the most part, Internet providers have said that they don’t want to engage in business practices that violate the so-called “bright-line rules” — which ban paid prioritization, slowing networks or blocking content a provider doesn’t approve of. Those are the rules that were featured most prominently in coverage of the net neutrality order.

Doug Brake, a telecom policy analyst for the Information Technology & Innovation Foundation, which opposes the order, said providers and regulators haven’t yet fully grappled with some of the more complex elements of the rules.

“I think the changes that come from the order are much more subtle and much more long term,” Brake said. “So it’s not like an overnight, dramatic change for consumers.”

He pointed to the net neutrality order’s new privacy regulations as a thorny area that companies and regulators will have to work through in the coming months.

Under the order, the FCC now views Internet providers as utilities. This means they must comply with Section 222 of the Communications Act, which says that they must “protect the confidentiality of proprietary information of, and relating to, other telecommunication carriers, equipment manufacturers, and customers.”

The FCC has said it won’t apply the privacy rules used for broadcasters, opting instead to create new rules for Internet providers. Providers, however, claim that they have no certainty that they are abiding by Section 222 in the meantime — and have decried the FCC’s guidance on the topic as vague.

So far, most companies have not made obvious changes to their business practices under net neutrality.

Sprint is the only company that has said publicly that it has changed its behavior to make sure it is complying with one of the bright-line rules. It said last week that it had stopped throttling the data speeds of some customers during busy times on its network.

A person close to Time Warner Cable confirmed that the company has not had to change its policies in order to comply with the rules. Other telecom companies declined to comment or did not respond to emails from The Hill.

There are signs, however, that companies are quietly making changes to avoid any potential violations.

In the lead up to June 12, many Internet providers signed agreements with Internet backbone providers, companies that deliver content on behalf of services like Netflix, that were meant to head off complaints.

For some time, backbone companies like Cogent and Level 3 had accused certain Internet providers of slowing their traffic. Under the net neutrality order, they could have complained to the FCC.

In April, Cogent’s CEO said that “we would have no choice but to file a complaint” if the issues persisted. Throughout the spring, Internet providers including Verizon, Comcast and AT&T signed new agreements with the backbone companies to avoid that fate.

Even as companies and the FCC continue wrangling over those issues, the courts must still decide the legality of the net neutrality order.

When a D.C. federal court ruled this month that the net neutrality order could go into effect as scheduled on June 12, the three-judge panel also said that the courts should move quickly to decide the case.

Observers expect the case will be argued around the end of the year and decided in 2016.

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