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Net Neutrality

by Stu Johnson

Posted: December 23, 2017

What did the FCC do and what does it mean?…

From recent news, one could assume that the FCC was going against the public will by rescinding the latest version of the “Net Neutrality” rules enacted in 2015.  One could easily get the impression that the whole body of Net Neutrality was dismissed, but as often happens, that is a false impression.

To the average person, the term “Net Neutrality” sounds good. Indeed, why would not up to 80% of Americans favor the concept of a level playing field for both providers and consumers of content on the Internet, if that is how “Net Neutrality” was explained? 

As I have pointed out in other blogs, opinion polls often can produce debatable results because of the lack of knowledge about a subject and the way questions are phrased.  “Net Neutrality” sounds good, so I must be in favor of it.  One of my pet peeves, as you may know by now, is asking the public for an opinion as if they are all experts in the field, when in truth they are enormously ignorant.  All that the polls are really doing, in many cases, is testing the favorable sound of a phrase or the judgment of a personality.

As usual, things are more complicated than they seem, so let’s dig a little deeper. Bear with me, because I think it will be helpful to understand the larger context of the role of the FCC.

Historical Context: Role and powers of the FCC

For more than two decades, I taught college level courses in communications (mostly radio and television production) and managed the college’s noncommercial radio station.  In the Introduction to Broadcasting course, I used to bring in a copy of the Communications Act of 1934—literally the size of a small pamphlet—and a stack of notebooks containing the Rules & Regulations governing noncommercial radio.  That represented a basic civics lesson (at a time when Civics was still in the curriculum of most schools!):  Congress sets the guidelines, the law, by which the Executive branch carries out that law through the authority granted to various agencies of the federal government—like the Federal Communications Commission—which, in turn, carry out their duties through administrative and legal procedures, including written Rules & Regulations.

When I was involved in broadcasting and ham radio, before anyone had even conceived of the Internet, the regulatory responsibility of the FCC was pretty straightforward.  Because radio waves do not respect political boundaries (states and countries), management of the radio spectrum was considered interstate commerce, the domain of the federal government. The FCC had the responsibility of managing the radio spectrum for the United States, in the broader context of international management.

The behavior of radio waves various at different points in the spectrum—very low frequencies can travel great distances, even going over the horizon (short wave and AM radio), while higher frequencies are more controllable, with predictable coverage areas (FM and broadcast Television) or as point-to-point communication (microwave).  The Communications Act of 1934 created the FCC to manage the technical aspects of spectrum use and was specifically prohibited from censoring content.  Use of the spectrum was controlled through the granting of licenses to serve the “public interest, convenience, and necessity.”

The regulation of telephone was a bit more complicated, with state and overlapping federal agencies involved. As radio technology matured, and through the rural poverty that deepened in the Great Depression, there was a drive toward “universal coverage,” a concept already practiced in other parts of the world, where every person, no matter how remotely located, should have access to electricity, telephone, mail and, now, radio. In fact, in Europe, regulation of radio and television was often included under the umbrella of the “Post” authority that governed mail delivery. In the U.S., telephone was treated as a “common carrier,” with regulations aimed at providing wide coverage at equitable rates (though rates could vary by type of service, distance, etc., but not in a discriminatory fashion).  It was the concept of a “dumb pipe” system.

The universal service ideal gave rise to “clear channel” AM stations that could blanket the country, especially at night when signals travelled further and there was less interference from daytime-only stations and the influence of the sun on the atmosphere.

Early Cable: Setting the stage for broadband regulation

When cable television was introduced in the waning decades of the 20th century, it initially provided a means of getting television into areas with no or poor television reception (i.e., the mountainous area of western Pennsylvania outside of Pittsburgh).  The most common regulatory model became the local franchise—essentially a regulated monopoly similar to a public utility (gas, electric, telephone). In most cases, this forced cable providers to compete between rather than within communities, since that would require parallel physical cable networks. This established a setting in which the FCC felt little need to interfere—cable was basically just an extender for broadcast television, which it did regulate.

While universities and government agencies developed the Internet through dedicated networks, its introduction to the public relied initially on telephone lines. As time went on, the line between telephone and cable, both in a technical and regulatory sense, became more and more blurred.  Satellite services opened the door to cable-only channels that would quickly overwhelm local broadcast channels in number. It was not long before cable companies became conduits for unregulated non-broadcast providers.  More recently, the use of fiber optic technology by phone companies allowed them to directly compete with franchised cable operators.  

Broadcast television content was lightly regulated, being regarded by the FCC and the courts as a public service, beholden to “community standards” (profanity, pornography) and subject to expectations of fairness in the coverage of controversial issues (the Fairness Doctrine). Cable channels had no such constraints, though—especially in the early days when channel capacity was limited—community franchises might limit such things as adult channels, require that certain types of content be available only as a premium service, and require one or more local “community” channels for schools or local government to use as a public service.

As cable matured, service providers started to provide their own content, with alliances like Time-Warner Cable, Comcast’s purchase of NBC, AT&T’s alliance with Direct TV, etc. Now, your Internet Service Provider (ISP) can be either a telephone company (AT&T) or a cable company (Comcast), and either can also bring your “cable” content.  That was the rub—the service providers were no longer like utilities that provided “dumb pipes,” but they were also acting as content providers.  While all this was going on, the digital revolution was changing broadcast television, content production, and the Internet—a complex mix, indeed! That gets us, finally, to a brief history of how we got to Net Neutrality and what lies behind the recent FCC action.  

The changing approach to regulating the Internet

  • 2002Internet as information service. the FCC determined not to regulate the Internet, treating it as an “information service.”
     
  • February 2004FourInternet Freedoms” – After considerable debate over potential abuses by cable providers, FCC Chairman Michael Powell, a Republican appointed by President George W. Bush, called for four Internet freedoms that would be foundational to the concept of net neutrality. (Quoted from a speech at the University of Colorado School of Law in Boulder – see notes at the end of this blog for links to source material)

    As we continue to promote competition among high-speed platforms, we must preserve the freedom of use broadband consumers have come to expect. Thus, I challenge the broadband network industry to preserve the following ‘Internet Freedoms:’

    Freedom to Access Content. First, consumers should have access to their choice of legal content.

    Freedom to Use Applications. Second, consumers should be able to run applications of their choice.

    Freedom to Attach Personal Devices. Third, consumers should be permitted to attach any devices they choose to the connection in their homes.

    Freedom to Obtain Service Plan Information. Fourth, consumers should receive meaningful information regarding their service plans.”

    In outlining the benefits, Powell suggested Internet Freedom “will preserve consumers’ freedom to access and use whatever content, applications and devices they choose based on the service plan they choose. . . .  promotes innovation by giving developers and service providers confidence that they can develop broadband applications that reach consumers and run as designed. . . . serve as an important ‘insurance policy’ against the potential rise of abusive market power by vertically-integrated broadband providers. . . And, if we secure a reasonable balance between the needs of network providers and internet freedom, consumers will reap the benefits of broadband without intrusive regulation, while preserving industry’s incentives to deploy more high-speed broadband platforms. . . . I encourage consumers to challenge their broadband providers to live up to these standards and to let the Commission know how the industry is doing. ‘Net Freedom’ is intended to give broadband consumers the choices, value and personalization they have come to expect. . . . Thus, consumers are the ultimate judges of whether the industry is successfully preserving ‘Net Freedom,’ or falling short.”
     
  • August 2005: The FCC approves an Internet policy statement (short of actual regulation) reflecting Powell’s four freedoms
    .
  • 2005-06: SBC, soon to be AT&T under the breakup of “Ma Bell” opposes sharing lines with companies like Google and Vonage because of its own investment in providing the “pipes.”   AT&T, however, then pledges to maintain a “neutral network” in exchange for U.S. government approval of its proposed acquisition of BellSouth.
     
  • 2007-10: From somewhat benign beginnings at the end of the Bush administration to court battles in the early years of the Obama administration, Comcast is accused of “throttling” BitTorrent and other peer-to-peer networks. Comcast calls it network management. The FCC orders Comcast to stop the practice, but in April 2010 the U.S. Court of Appeals for the District of Columbia Circuit overturns the FCC, saying the agency lacks “any statutorily mandated responsibility” to enforce network neutrality rules.
     
  • December 2010: After months of discussion, the FCC approved net-neutrality regulations (Open Internet Rules) that some consumer and digital rights groups said were weak and full of loopholes. The rules provided three levels of enforcement:

    • Transparency. Internet access providers had to start disclosing how they were managing their networks.
    • No blocking. Internet access providers couldn't block access to legal content or applications.
    • No discrimination. Essentially, net neutrality. Internet access providers couldn't favor one traffic source over another.
       
  • 2010-2015 – Muddy waters – the ensuing years produced rounds of appeals to the FCC and court cases suggesting that the Open Internet Rules were too vague, with opposing viewpoints calling either to tighten or rescind the rules.  The underlying freedoms outlined by Chairman Powell in 2004 were not the issue as much as the power of the FCC to enforce them through regulation. In January 2014 the D.C. Circuit Court of Appeals agreed with Verizon and struck down FCC enforcement of the Open Internet Rules while affirming the FCC’s authority to regulate broadband communication services. The Rules were not valid, the court said, because they were made by treating broadband services differently than other information services. This paved the way for the next step.
     
  • 2015 – Reclassification – With President Obama, among others, urging stronger action, the FCC issued new rules that reclassified Internet regulation from an information service (lightly regulated) to a telecommunications service (regulated common carrier) under Title II of the Communications Act.
     
  • 2015-2017Back to Court.  The reclassification meant increased power for the FCC and more stringent regulation, which not surprisingly spawned another round of appeals and court cases. In the meantime, with another change in administration, the new FCC chairman, Ajit Pai, who voted against the 2015 rules change under Democrat chairman Tom Wheeler, said he would revisit the issue, feeling strongly that the Internet should not be regulated as a utility.
     
  • December 14, 2017 – Back to where?  On a 3-2 vote, the now-Republican majority FCC rescinded the 2015 reclassification of the Internet as telecommunication service (which was done on a 3-2 vote by the then-Democrat majority), reverting to the long-standing status as an information service. Critics on both sides were quick to jump.  It could be said that this is going back to 2002, when the FCC decided the Internet should be treated as an information service. More correctly, from my reading, the 2017 action is specifically aimed at the 2015 reclassification, with general support for the concepts of net neutrality first articulated by Michael Powell in his 2004 Internet Freedoms.

Before this most recent FCC action, Andrew Nusca wrote an article in Fortune magazine on November 23 entitled “Net Neutrality Explained: What It Means (and Why It Matters).” Here is a brief excerpt that I believe captures the essence of the ongoing battle:

Most software companies oppose the FCC’s recent moves.

Technology companies—among them Airbnb, Google parent Alphabet, Amazon, Dropbox, Facebook, Microsoft, Netflix, Twitter, Snap, and Spotify—have made their disagreement with Pai’s position known. . . .
“The Internet should be competitive and open,” Google said in an early statement on the issue. “That means no Internet access provider should block or degrade Internet traffic, nor should they sell ‘fast lanes’ that prioritize particular Internet services over others. These rules should apply regardless of whether you’re accessing the Internet using a cable connection, a wireless service, or any other technology.” . . .

Most telecommunications companies support the FCC’s recent moves.

A different category of technology company—telecoms such as AT&T and Verizon—support the FCC’s move to rescind reclassification of broadband. In September, a group representing AT&T, CenturyLink, Verizon, and scores of smaller telecom companies formally petitioned the U.S. Supreme Court to overturn the Obama-era net neutrality rules.
. . . Charter, which acquired Time Warner Cable in 2016, said it would “not block or throttle Internet traffic or engage in paid prioritization” at the time of that deal. And Comcast says it supports net neutrality even as it rejects the FCC’s 2015 reclassification of broadband as a common carrier service. . . .

In the end, it’s a political issue.

Notice something curious about the statements made by Google and Comcast?
They’re remarkably similar. Both companies say they reject blocking, throttling, and paid prioritization for Internet users. Their disagreement is over how to enforce it.

Should the FCC regulate broadband Internet, or leave market players to do it? Are existing common carrier provisions the best way forward, or is new and different regulation the answer? It’s as political a battle as it gets. [emphasis added]

The new battleground: free speech

The 2010 Open Internet Rules required no blocking and no discrimination (consistent with Powel’s four freedoms). The battleground over regulation is as Andrew Nusca stated, “Should the FCC regulate broadband internet, or leave market players to do it?” remains critical, but could be overshadowed by an even greater concern.  

Social media, represented by powerful players like Facebook and Twitter, find themselves in the difficult position of providing open access at a time when such access can help deliver “hate speech.” This, however, has worried conservative groups who feel that positions that challenge a politically correct one can also be labelled as hate speech.  The question is, who judges the classification and where is the boundary?  Can we, as a society establish a framework (call it internet freedom or net neutrality) that ensures the kind of vibrant and contentious discourse needed to maintain a free and safe society?


SOURCES:

Internet Freedoms” – remarks of Michael K. Powell Chairman, Federal Communications Commission at the Silicon Flatirons Symposium on “The Digital Broadband Migration: Toward a Regulatory Regime for the Internet Age” University of Colorado School of Law Boulder, Colorado February 8, 2004

Net Neutrality at the US FCC, a Brief History” - PC World, September 5, 2013

Net Neutrality for Dummies and How It Affects You” – Business Insider, January 2014

Limbaugh is Right, Net Neutrality Is an Attack on Free Speech -- So Why Is Comcast For It?” – Frank Miniter, Forbes, September 18, 2014
While referenced obliquely in my conclusion, this article provides more detail on the idea that net neutrality can represent a modern-day Fairness Doctrine.

Net Neutrality Explained: What It Means (and Why It Matters)” – Andrew Nusco, Fortune, November 23, 2017

Additional sources were used to check some of the details in the timeline, but they are not listed here. There is a lot of material on net neutrality on the web—just use the usual cautions in validating sources.


Stu Johnson is owner of Stuart Johnson & Associates, a communications consultancy in Wheaton, Illinois focused on "making information make sense."

E-mail the author (moc.setaicossajs@uts*)

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Posted: December 23, 2017

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