2015 was the last year of the open Web

By most accounts, 2015 started as a banner year for advocates of an open and equal Internet, otherwise known as net neutrality.

Federal Communications Commission chairman Tom Wheeler, former lobbyist for the telecom industry and presumed patsy for anti-net-neutrality Internet Service Providers, announced he would be siding with President Barack Obama on enacting Title II regulation—treating internet providers as a public utility and restricting them from giving faster speeds to some websites over others. In February, the FCC voted in favor of Title II regulation and, for most, the harrowing debate to keep the Internet open and active was well and done.

The rest of 2015, however, proves this fight has just begun.

While net neutrality has and will continue to face frequent challenges in courts and legislatures, ISPs like Comcast, Verizon, and even mobile carriers like T-Mobile have proven eager to use their considerable stranglehold on your ability to access the websites and services you enjoy and need to their own benefit. The nightmare of data caps and favoritism for some streaming services over others have left the warnings of advocates and become reality for millions of Americans left with no other choice for connecting to the Web.

The Internet treated the FCC’s February decision as a powerful victory, but, in reality, it could very well be remembered as evidence that we can never do enough. Challenges to the decision came fast and furious, with ISPs and cable companies stacking their deck of lawyers for expected lawsuits against the FCC in hopes a judge will deny the commission its newfound powers while settling the issue in the courts. As the Daily Dot’s Eric Geller illustrates, the legal brawl of net neutrality will likely last decades, not years.

The Internet treated the FCC’s February decision as a powerful victory, but, in reality, it could very well be remembered as evidence that we can never do enough. 

Net neutrality faced its strongest challenge yet in the courts earlier this month, as the US Telcom Association argued the FCC’s plans are not only a hindrance to the business of ISPs but a restriction of their First Amendment to “edit” the data moving over a digital infrastructure they undoubtedly own. The USTCA even trotted out Joe Portman, CEO of small, local ISP Alamo Broadband, to convince the public and the panel of federal judges this was not a debate between corporate giants and  a liberty-loving commission but between enterprising Americans and domineering bureaucrats.

“If the FCC can regulate what content my company must carry,” argued Portman in a recent USA Today op-ed, “Nothing would stop the FCC from ordering Internet service providers like mine to block access to content that the government decides is offensive or controversial.”

Alongside such litigious fear-mongering have been legislative efforts to restrict the open Web, starting with a June sneak attack by House Republicans to severely limit the FCC’s ability to enforce the new rules. Senate Republicans would likewise introduce such a measure to place a hold on the FCC’s new regulatory powers, likewise painting the decision as an overreach of government power on well-intentioned ISPs who have pledged to not engage in limiting practices—such as throttling traffic to one site over another.

Except ISPs have and will throttle seemingly at will, and 2015 has proven they only have intention to strengthen their ability to restrict your ability to surf the Web and stream video as you please. Perhaps most worrisome has been the slow creep of data caps from Comcast, the country’s largest ISP. In November, the company greatly expanded its 300 GB data limit on home users which, Comcast claims, will affect only a small minority of heavy users. While Comcast has claimed the program is meant to help manage “network congestion,” memos leaked last month reveal inner talk within the company is treating it as a profit-boosting scam.

Data caps will likely prove to be the next front in the fight for an open Internet. The fight over net neutrality relied on abstract notions of liberty and innovation as well as trusting the average Internet user to care about the development of competitors to the services they already use. Data caps, however, are familiar to any smartphone user, and lacking the unlimited data of their home connection will only put more of a strain on their daily digital life. As techies stand in awe of services like 4K video, virtual reality gaming, and high-quality live-streaming, companies like Comcast are hoping to drill these high-bandwidth technologies for their own profit at the consumer’s detriment.

Data caps will likely prove to be the next front in the fight for an open Internet. 

Which is not to say, however, that data caps and net neutrality are not distinctly related. Other carriers, like AT&T, Verizon, and T-Mobile are hoping the weight of a data cap will force users into streaming services with “sponsored data.” Working somewhat like a toll-free phone service, “sponsored data” allows companies to subsidize the data customers must use to enjoy their service so it doesn’t count against the user’s monthly data limit. Otherwise known as “zero rating,” the practice allows ISPs to extend privilege to services that can afford to give them more money—exactly the kind of anti-competitive practice the FCC’s Title II regulations are meant to prevent.

Such programs can often appear deceptively attractive to consumers, such as T-Mobile’s “BingeOn” program which will not count data streamed from Netflix, Hulu, HBO Now, and a variety of other streaming services against a customer’s data limit. While that might seem encouraging to heavy video users, net neutrality advocates rightfully warn such practices violate the spirit of the FCC’s regulation and could be a backdoor for carriers and ISPs to implement the same kind of practices Title II is meant to prevent.

The FCC has largely strayed from the debate over sponsored data and zero rating, though has left the door open on analyzing consumer and market benefit over data caps. After the commission turned down a chance to comment on data caps because the number of consumer complaints “appeared to be small,” activists and consumers flooded the FCC with complaints about the data restrictions.

Such activism worked well in the fight to preserve net neutrality—the FCC’s open board for complaints about throttling reached more comments than any FCC matter in the history of the commission—but a sense of inevitability may be greeting this next battle. Data caps and “sponsored data” programs are easy to implement and cost-effective for all ISPs, big or small, and have proven more than worthwhile to mobile carriers. 

The same energy that invigorated activists and digital citizens of all kinds in 2014 needs to be reactivated for what is sure to be a harsh 2016. While we might be ready to marvel at our connected future, it becomes all the more important that we preserve our ability to even find it.

Gillian Branstetter is a social commentator with a focus on the intersection of technology, security, and politics. Her work has appeared in the Washington Post, Business Insider, Salon, the Week, and xoJane. She attended Pennsylvania State University. Follow her on Twitter @GillBranstetter

Illustration by Max Fleishman

Gillian Branstetter

Gillian Branstetter

Gillian Branstetter is a reporter and essayist who specializes in the intersection of technology, LGBTQ issues, and privacy. In April 2018, she joined the National Center for Transgender Equality as a media relations manager.