Repeal of ‘net neutrality’: What are the implications for the Berkshires?

Berkshire County — Imagine for a moment that, as a result of a fee the auto company had paid to the Turnpike Authority, one lane on the MassPike was reserved only for drivers of Volvos and that the lane had a higher speed limit than all the others who had to slog along in a crowded single lane.

In a manner of speaking, that’s precisely what many technology users in the Berkshires and elsewhere fear could happen if the Federal Communications Commission approves the repeal of so-called “net neutrality” rules that have governed the Internet since the second half of the Obama administration.

“If net neutrality protections are abandoned, service providers like Comcast, Time Warner, and Verizon could give huge tech company customers like Google, Amazon, Netflix, and Hulu access to priority ‘fast lanes,’ which would leave smaller companies at a disadvantage if they can’t afford to pay ISPs for that access,” states Inverse, a website that covers technology and entertainment.

The opinion of Berkshire County experts contacted by The Edge ranged from skepticism to staunch opposition to the repeal of net neutrality, which is the principle that requires Internet service providers such as Charter and Verizon to treat all data on the Internet in the same manner and not to charge different rates based on content or platform.

Federal Communications Commission Chairman Ajit Pai

The net neutrality rules were enacted in 2015 when Democrats, many of them appointed by then-President Obama, controlled the FCC. One of those commissioners, Ajit V. Pai, a former associate general counsel at Verizon, was since appointed chairman of the commission by President Trump and is the prime impetus behind the movement.

The move to repeal net neutrality, which the FCC is slated to consider Thursday, Dec. 14, has caused alarm in much of the technology community and has raised the specter of censorship by Internet service providers who could make it difficult for content providers to be seen on certain broadband networks.

Theoretically, ISPs could block or throttle content they don’t like, or they could boost speeds for larger content providers who would pay a fee to the ISP for the privilege. That could result in the pages of smaller content providers, such as The Edge, loading more slowly because they cannot afford to pay the ISP for higher speeds.

“It is hard to say precisely what the outcome will be, but the end of net neutrality will certainly provide ISPs with more tools to extract money from Internet companies and individuals, and to control what we can do and see on the Internet,” said Great Barrington tech expert Asa Hardcastle.

Hardcastle, whose company Tonic 5 provides technology consulting, added that, “It is not hard to imagine the Internet working like cable TV, where premium channels cost more money and services are in bundles created to maximize profits. This is so clearly bad for the Internet.”

It remains to be seen specifically how the end of net neutrality would affect the Berkshires. But smaller media outlets are clearly concerned. Local Independent Online News (LION) Publishers, a trade group whose members include the Edge, put out a statement earlier this week warning that, “Repealing Net Neutrality would allow giant chain media to work in concert with internet conglomerates to limit access to independent, alternative, and local news sites.”

Matt DeRienzo, executive director of Local Independent Online News Publishers (LION). Photo courtesy LION

“Access to information and local journalism that holds government and other powerful institutions accountable are essential to a functioning democracy, economic well-being, and human rights,” said LION executive director Matt DeRienzo. “These pillars are already under severe strain from the dominance of a handful of large tech platforms, and the rapid consolidation of the newspaper and broadcasting industry under the control of a few enormous corporate chains.”

DeRienzo later told The Edge, itself an internet-only start-up, that online news is “the great equalizer” that has “emerged to fill the gaps in local information and journalism” brought on by corporate downsizing and traditional legacy media.

“It’s also meant that some people and communities who were never well-served by big legacy media companies in the first place now have a voice,” DeRienzo said. “Net neutrality makes this possible. Those voices will be silenced if access goes to the highest bidder instead of being guaranteed as a public resource.”

Other LION members have described the move by the FCC as everything from “destroying the internet” to threatening “the very nature of open online access to vital news that in many communities is citizens’ only source of information.” The LION statement has been endorsed by the Edge, according to publisher Marcie Setlow.

Attorney Jeremia Pollard is a partner at Hannon Lerner, a law firm based in Lee, and is admitted to practice in several federal courts, including the United States Supreme Court. He has not yet studied the issue of net neutrality extensively but is nonetheless troubled by it.

“The growing acceptance of pay-to-play in our society is creating an income-driven caste system,” Pollard said. “Those who benefit from corporate media hegemony no doubt look forward to the opportunity to bump from internet commerce the already too few independent voices that exist.”

Attorney Stephen L. Cohen of Egremont. Photo: Terry Cowgill

Another attorney, Stephen L. Cohen, an Egremont resident who specializes in complex civil and criminal litigation, agrees.

“It seems the concept of having the users of the internet pay different fees for different speeds is inherently anti-competitive,” Cohen said. “How do start-up companies compete with the established ones for customers if they can’t afford to pay?”

The Edge also reached out to Charter-Spectrum, the company that acquired Time Warner Cable last year, which provides cable television and internet service to most of Berkshire County. Charter-Spectrum, which is now the second largest broadband provider with 23.6 million customers, did not return our messages.

But in a brief post on the company’s website, Chairman and CEO Tom Rutledge re-iterated that Charter’s “support for an open internet is an integral part of our commitment.” However, Rutledge characterized the FCC move to abandon net neutrality as a “welcome and necessary step toward returning to the regulatory framework” that will “spur investment in and the deployment of the next generation of broadband.”

For its part, Verizon, which provides DSL internet service to the Berkshires and broadband services in more densely populated areas, has argued in a company video that the end of net neutrality would actually “preserve the Open Internet … rules by simply moving them into a different legal category.” The video was promptly deconstructed by the Verge, a respected tech news website.

See video of Verizon’s corporate message on net neutrality. And click here to see a rebuttal in the Verge.

Comcast, which serves much of Connecticut and eastern Massachusetts, is the largest broadband provider in the nation. The company owns NBC Universal and defended the FCC move on its corporate blog earlier this month, arguing that net neutrality “has harmed broadband investment and innovation.” Still, Comcast promised it “will not block, throttle, or discriminate against lawful content.”

The repeal of net neutrality has also been defended by some conservative media outlets such as the Wall Street Journal, which supported the FCC proposal as “a return to the free internet that reigned for 20 years” in an editorial last week. The Journal also defended the practice of “paid prioritization” or internet fast-lanes for a fee, likening it to the way “Amazon requires you to pay extra for one-day delivery.”

Paul Rapp is an attorney based in Berkshire County whose practice includes media and First Amendment law.

“The idea that net neutrality is stifling investments in the industry is nonsense,” Rapp said in an interview. “No, this will be a nightmare. It will kill the open internet.”

Rapp says the repeal of net neutrality will raise the barriers to entry for small businesses, especially those that depend heavily on internet traffic. And he is concerned that the absence of net neutrality will aid in the consolidation of power that is already happening in the media industry, which was made easier when the FCC recently relaxed restrictions on ownership in local markets.

Media and First Amendment attorney Paul Rapp of Monterey. Photo: Richard Lovrich

That action could pave the way for the Sinclair Broadcast Group, a conservative-leaning company that already owns 173 local television stations, to acquire the 42 stations of Tribune Media. That potential deal has been branded “Trump TV” by the left-leaning Mother Jones magazine.

Recently, the Koch brothers announced that they are financial backers of the acquisition of Time Inc. The vast resources of larger media companies such as those backed by the Koch brothers would allow them to pay for faster speeds with the effect of throttling smaller companies or those that are otherwise unable to afford the higher speeds.

“The implications for free speech are considerable,” Rapp said. “But let’s say you have a start-up company that allows for streaming. Your streaming services will be slower. Today’s economy was based on this open competition. Anyone can come in with a good idea and really flourish.”

Egremont resident Mark Tuomenoksa is a musician and former internet CEO who worked for Bell Laboratories for 16 years. He comes down on the side of preserving net neutrality and had strong words for the FCC commissioners who voted for abolishing it:

“I would want all their names to go on a document that’s permanently enshrined somewhere. If they abandon net neutrality, we’ll look back for years at the villains who did it.”

Referring to the notoriously slow internet in the Berkshires, Tuomenoksa said, “In some ways [net neutrality] is a red herring because it doesn’t matter who carves up the bandwidth if you don’t have any to begin with.”

In the absence of broadband in Egremont, Tuomenoksa spends $700 per month on cellular data because it’s the only high-speed alternative he has. That could change soon, as both Charter and Fiber Connect are wiring Egremont for broadband.

A lineman subcontracting for Fiber Connect strings fiber on Route 41 in Egremont earlier this month. Photo: Terry Cowgill

Fiber Connect CEO Adam Chait says his company, as a downstream provider, practices net neutrality.

“We don’t deliver content,” Chait said in an interview. “If the content provider is charged, it has nothing to do with us.”

But Chait quickly added that, “Our policy is to be net neutral. We like it and we’d like it to stay. My concern is if upstream providers pass those costs on to us.”

Meanwhile, Fiber Connect trucks could be seen this week connecting homes in Egremont and Monterey, where the company is based. On Monday, Chait said 78 customers have service in Monterey, with 56 in Egremont. Eventually he expects to have 500 customers between the two towns. Chait maps the progress in providing service on his website: click to see the progress in Egremont and Monterey.

Tuomenoksa does not see a problem with charging some content providers more if they suck up enormous amounts of bandwidth. Video streaming services such as Netflix, for example, account for about 70 percent of peak internet traffic in North America, with Netflix alone accounting for 37 percent of it.

“Trucks do pay higher tolls and extra taxes,” Tuomenoksa said.

One of the problems with rural broadband is the build-out of the so-called “last mile” to end-users. Tuomenoksa said he would be fine with charging content providers more for faster speeds if the proceeds, say, were put into a pool to fund last-mile build-outs.

Musician and former Internet CEO Mark Tuomenoksa makes a point during a broadband meeting in Egremont in April. Photo: Terry Cowgill

“If they promised to spend a certain amount doing that, then we might have something,” Tuomenoksa explained. “They could repackage it as ‘internet for everyone.’ It would change both the thinking and marketing.”

But in the absence of such a strategy, Tuomenoksa thinks broadband access should be treated as a public utility. In nations where it is so treated, such as Finland, “broadband is everywhere,” he said.

Jeff Wallman is the executive director of the Buddhist Digital Resource Center in Cambridge and lives part-time in the Southfield section of New Marlborough.

His nonprofit organization is “dedicated to preserving and sharing Buddhist texts through the union of technology and scholarship,” according to its website.

Wallman is in Southfield at least half-time and cannot do better than a DSL line from Verizon. Consequently, his use of video conferencing and file sharing is a challenge.

“It’s an important issue for us,” Wallman said of net neutrality. “If it changes drastically, it would be difficult for us and our users. We’re a non-commercial source of information and we could be throttled.”

Jeff Wallman, executive director of the Buddhist Digital Resource Center, in Tibet. Photo courtesy Jeff Wallman

Wallman is concerned that smaller websites that cannot afford the fast lane will see their pages load more slowly. And he says research indicates that consumers have little patience for web pages that load slowly and that such latency can actually lower search rankings as well.

“All this will do is help the [internet] service providers,” Wallman opined. “It gives them more control over what kinds of content they can throttle. It’s blind deregulation. That, I think, is where it’s coming from — business exerting undue influence.”

So what happens now? If the FCC votes on Dec. 14 to repeal net neutrality, Rapp says it could be challenged on antitrust grounds since ISPs such as Comcast also own content providers. Or perhaps it could be challenged in court as a matter of administrative law.

“For them to impose all of a sudden brand new standards on media companies, they will have to justify it,” Rapp said.

See video below of comedian John Oliver’s take on net neutrality: