The Consequences of the Death of Net Neutrality

It’s inarguable that one of the greatest features of the internet is sheer freedom. Aside from a few highly regulated and illegal activities, every user is free to have a certain degree of anonymity and autonomy. However, internet service providers (ISPs) have been looking to crack down on certain types of users – those that use up more bandwidth than average. To further this end, AT&T has filed a new patent for “Prevention of Bandwidth Abuse of a Communications System”.[1] But is this really just an attempt to go after torrenters, file sharers and pirates, or is there a further motive here? And even if AT&T is being honest with whom it wishes to restrict, is this a symptom of a greater issue?

AT&T has been looking into different ways to reduce bandwidth congestion and increase profits. Take, for instance, the Sponsor program which allows companies to pay AT&T and allow customers to use data without using up their data plans on smartphones. [2] This already sets the stage for AT&T monitoring the internet activities of its users. However, the patent goes one step further than that – not only will AT&T monitor your activities, but it will assign you a certain number of credits  that you will lose as you do things that AT&T does not approve of – file sharing, torrents and excessive bandwidth usage.  While the Copyright Alert System merely issued warnings after signs of actual illegal activity, a targeted and mostly neutral gesture[3], AT&T could blacklist your connection and throttle bandwidth simply because of excessive bandwidth usage. [4]

The AT&T patent came after an extremely important ruling regarding the freedom of internet use – the D.C Court of Appeals ruling that struck down the FCC’s Net Neutrality rules earlier this year.  The Court stated that while the FCC does have the ability to generally regulate telecommunications, by classifying ISPs as exempt from common carrier status, they were relying on statutes for their authority in creating the Net Neutrality rules that did not apply to those outside of common carrier status. [5]

What is common carrier status, exactly? Common carriers are services that use public rights of way that are fundamental to the people.  The concept of common carriage is used in the telecommunications industry because of the wires and other devices that bring phone calls and other forms of communication to people.  However, in 2005, the Supreme Court ruled that broadband internet is not a telecommunications service, instead falling under information services, thus making providers’ infrastructures not public and not subject to common carriage status. [6]  Since the ruling, ISPs such as Verizon and AT&T have been able to, even if they have not done so as of yet, slow down traffic to relieve congestion as well as have the ability to favor certain types of internet content over others.

With the Open Internet Order of the FCC gone, companies and individuals on both sides have spoken up about their fears and prospects. Service providers argue that they will be able to provide better service by allowing web services and content providers to pay some of the costs of bandwidth, defraying the costs for the customers. Additionally, they will be able to monitor and remedy network congestion more easily. [7]However, net neutrality adherents believe that this will destroy the great equalizer that is the internet by favoring certain websites over another at the end user level through benefits for sites that pay the ISP as well as speed throttling and even blocking sites that the ISP disfavor.             With net neutrality gone, more patents like AT&T’s seem likely.  The Court, in handing down their decision, understood that the rules were necessary but they felt like the authority that justified the restrictions was not valid. [8] The way to recreate the rules would be to give them legislative backing – that is, Congress either explicitly giving the rules guaranteeing net neutrality or giving the FCC the explicit ability to regulate ISPs. [9] However, Congress has been unable to come to a consensus on the issue, with the attempt in 2006 to give the FCC the explicit right to regulate broadband companies failing in both the House and Senate. [10]

                AT&T’s patent on a “Prevention of Bandwidth Abuse of a Communications System” seems to be harmless and maybe even positive at first glance, but allowing large companies like AT&T, Verizon and other providers to throttle speeds and control data destroys the free market of the internet. Larger sites like Netflix and Youtube could completely outperform and push out smaller sites through end-user internet speeds by paying the ISP for better performance for users accessing their sites.  Not only is this a problem, but any dispute between an ISP and a larger site, like Amazon could result in the customer getting affected negatively  by either blocking or slowing down speeds to that site.  Unless the FCC successfully appeals or Congress comes together to act, ISPs could not only slow down innovation and progress on the web, but also restrict free speech and the free market.







[6] Id.

[7] Id.


[9] Id.