Recently, the Federal Communications Commission (FCC) repealed the net neutrality regulations created during the Obama administration. These regulations were put in place primarily to stop internet service providers (ISPs) from engaging in discriminatory practices against online services/companies (a common example is Comcast manipulating the availability of Netflix – slowing it down – for its customers until Netflix paid the ISP for better speeds). They also had the delightful side-effect of ensuring that the United States would not see the cable-TVization of the internet, similar to what you see in countries like Portugal who have no net neutrality rules:

This move from treating the internet like a utility (like water or power) that all American citizens can access without the typical market concerns, to a commodity is concerning for consumers and businesses alike. When the vote was finalized a few weeks ago, one of LexBlog’s internal Slack channels came alive as we tried to parse through what this could mean for publishers and small businesses.

Personally, I don’t believe that there will be an immediate fallout from the FCC’s decision for content producers and smaller companies. This is a fight amongst titans that will surely have long-term ramifications for consumers and creators, but in the near-term it seems likely that ISPs and the behemoth content producers and services (Facebook, Google, Netflix, Amazon, Disney, etc.) will duke it out behind closed doors.

But when the dust settles, what will this mean for smaller publishers? Here are a few hot-takes from yours truly:

  • Most publications that aren’t the Washington Post or NY Times will see little change. These companies need big tubes and are a resource drain for ISPs and so will face the brunt of the initial pain.
  • Publications and companies that don’t pay ISPs will have an uphill battle to “go viral.” While some ISPs may have more fair access (no “slow lane” for the smaller producers), it seems pretty likely that if an unknown site suddenly becomes much larger, the ISPs will come knocking.
  • It will be hardest for companies that want to bootstrap their way to the top.

The subtext in my last point is that so many content producers, whether they know it or not, are already using architecture controlled by companies that have a vested interest in maintaining the status quo for their own services. Take Amazon and Google. In this brave new world, these companies may have to pay for a “fast lane” so that visitors aren’t annoyed by slow load times, consumers may have to pay ISPs for access to these specific sites, or both. At the same time, both of these companies provide cloud-computing platforms (AWS and GCP) that are huge revenue drivers. Will these companies sit idly by as their users (read: profit margins) are marginalized to the point of extinction? Seems highly unlikely.

Obviously LexBlog has an interest in a level playing field. On top of the fact that we provide a service to our customers, everyone at LexBlog is philosophically aligned with the core concepts of a free and open internet. It’s why we do what we do – the notion that the law can become more accessible through lawyers publishing online and anyone with an internet connection can find that content is a beautiful, egalitarian concept. While I’m hopeful that this landscape will continue much in the way that it does today, but with some new wrinkles, it’s likely that there will be broader changes that are unpredictable as the marketplace adapts.

What do you think?