Net Neutrality and the FCC's Newly Proposed Internet 'Fast Lane'

Fri May 16, 2014 15:29:52PM

There is a lot of discussion (and confusion) over Internet Neutrality, or 'net neutrality' as it was coined back in 2003 by Columbia media law professor Tim Wu. The point and focus of this blog entry is to define what net neutrality is, to lay out it's brief but important judicial history, to present the arguments both for and against strict regulation, and finally to highlight why it's so important to understand the national debate, as it will directly effect anyone that uses the internet, both in the short term and especially in the future. Also, the FCC wants EVERYONE'S feedback on their newest regulation proposals. At the very bottom of this post, I outline just how to give it to them. For now, I hope you will at least skim through the middle portion to educate yourself on the matter if you are new to the subject, as many Americans are.

First, let's get a few definitions out of the way. What is net neutrality?

Net neutrality (also network neutrality or Internet neutrality) is the principle that Internet service providers (ISPs) and governments should treat all data on the Internet equally, not discriminating or charging differentially by user, content, site, platform, application, type of attached equipment, and modes of communication.

That is the Wikipedia definition, and does well to explain the entire scope that net neutrality encompasses. Put into even more basic English, net neutrality is the idea that the internet should be neutral, just like it sounds. Equal, free of any kind of favoritism, for any reason. You should be able to have free and open access to information on the world wide web, regardless if the data is coming from a huge corporation like Verizon, or from a little guy or gal running a start up, or a small blog. If you think of the internet as a highway system (as many do), net neutrality would mean that all vehicles (packets of information) should get the exact same access to the public roads, across the board. Ideally that's what the aim and core concept of net neutrality is; an ideal of keeping the internet open and equal, regardless of any content provider's pocket book, fan-base, or lobbying ability.

The second glossary index that is crucial to understanding the debate and judicial history of net neutrality is the term 'common carrier'. Common carrier, in its vaguest of definitions, is defined like this: A common carrier in common law countries (corresponding to a public carrier in civil law systems, usually called simply a carrier) is a person or company that transports goods or people for any person or company and that is responsible for any possible loss of the goods during transport.

That definition also thanks to Wikipedia. Common carriers refer to many things: public airlines, railroads, bus lines, taxicab companies, cruise ships, motor carriers, actual pipelines, and of course in the internet's case, telecommunications. The definition goes on to say this short bit as well:

A common carrier offers its services to the general public under license or authority provided by a regulatory body. The regulatory body has usually been granted "ministerial authority" by the legislation that created it. The regulatory body may create, interpret, and enforce its regulations upon the common carrier (subject to judicial review) with independence and finality, as long as it acts within the bounds of the enabling legislation.

Understanding the term 'common carrier' becomes really important when trying to wrap your head around net neutrality because legislation has so far been written to define telecommunications (i.e. the internet) into that category of law. And that's how the courts decide how the FCC (Federal Communications Commission) can regulate the data providers on the internet, or if they have the right to do so at all. In the January 14th, 2014 DC Circuit Court ruling of 'Verizon Communications Inc. v. Federal Communications Commission', that's exactly how Verizon was able to win, and deal a huge blow to net neutrality in the first place, with semantics.

Okay. So hopefully those definitions are clear enough. Net neutrality means a neutral internet. And common carrier is the language of current law that says the 'traffic and data transportation' of the internet is to be treated in the same regulatory category and manner as cruise ships and public airlines.

On to the judicial history of net neutrality.

The United States Federal Communications Commission (the FCC) is in charge of regulating internet service providers' conduct in the US, though the extent of its jurisdiction is subject to ongoing legal disputes. Here is that history, or at least the brief cliff notes that I deem most important to this conversation:

2005: The FCC made its first official regulatory language outline of net neutrality, and what purpose it was to have. It was officially called the 'Broadband Policy Statement' aka the 'Internet Policy Statement'. The term is highlighted, as that link goes directly to the official document.

To summarize though, it can be easily broken down into 4 principles of open internet:

To encourage broadband deployment and preserve and promote the open and interconnected nature of the public Internet, consumers are entitled to:

1) Access the lawful Internet content of their choice
2) Run applications and use services of their choice, subject to the needs of law enforcement
3) Connect their choice of legal devices that do not harm the network
4) Competition among network providers, application and service providers, and content providers

2008: Comcast was called out by the courts, "ruling that it had illegally inhibited users of its high-speed Internet service from using file-sharing software". Comcast of course denied any wrong doing, but paid the settlement anyways. This was a big win for the FCC and net neutrality. It set a precedent that the letter of the law was serious.

2009: The language of the law was slightly updated to include two things: 1) wireless data to be treated with the same net neutrality as wire-line. 2) The nondiscrimination principle that ISPs must not discriminate against any content or applications, and the transparency principle, which requires that ISPs disclose all their policies to customers.

2010: The first blow to the FCC's net neutrality. On April 6, 2010, the 'United States Court of Appeals for the District of Columbia Circuit in Comcast Corp. v. FCC' ruled that the FCC lacks the authority to force Internet service providers to keep their networks open to all forms of content.

2010 again: The FCC went and changed the language again, in hopes of making sure net neutrality didn't get lost in semantics, letting the lawyers and courts effectively make the law moot. So they re-classified broadband Internet access providers under the provisions of Title 2 of the Communications Act in an effort to force the providers to adhere to the same rules as telephone networks. This adjustment was meant to prevent, "unjust or unreasonable discrimination in charges, practices, classifications, regulations, facilities or services".

2014: That Title 2 reclassification worked, but only temporarily. And that brings us, more or less, to 2014. Again, I'm mentioning the highlights. In any case, as I mentioned above, Verizon played with the language of 'common carrier', and was able to circumvent the FCC policies of the last several years by focusing on basically one simple point that won them their ruling: the FCC has no authority to enforce Network Neutrality rules, as service providers are not identified as "common carriers".

That's why common carrier is an important term to understand. Verizon was able to effectively argue that they are not a common carrier, so the FCC can't regulate them. Here is the full ruling: Verizon Communications Inc. v. Federal Communications Commission

So, the FCC has been trying (and mostly succeeding) since 2005 on keeping the internet open and neutral through net neutrality regulations. Problem is, like with most overly written language on legislation, by pigeon-holing themselves as regulatory masters over the internet in the same law language as common carriers, and by re-classifying the internet into the Title 2 classification, they effectively allowed for clever lawyers to circumvent their power of regulation. This also forced the judges on the circuit courts into a corner, for they had no choice but to rule in favor of Verizon and Comcast, two of the few behemoths of the internet provider industry, because of the current language of the law.

That covers the definitions and the history. How about the arguments for and against?

The arguments FOR are fairly simple. And, if you haven't yet gleamed from the way I am presenting this information, I am FOR net neutrality. An open and neutral internet is the best (and likely ONLY way) to ensure that access to information on the internet is not slanted in any unfair direction. Net neutrality is also likely the only way to ENSURE that certain information that big companies would rather not you have easy access to remain accessible. For that's the greatness of the internet in the first place. True freedom and true access to all kinds of information, for all. Right now, the 'pipelines' don't discriminate. They just transmit. It scares me to think of a day when that is no longer the case. Perhaps its best to go into the arguments AGAINST net neutrality, as to better shape that point.

Broadband data is not created equal. Netflix, as a great example, requires more "traffic/highway room" if they are to provide their content most effectively, than say someone's personal blog. This is true. The amount of data required to stream HD video content to millions of users is much more than to send and receive more basic HTML coding, that is presented in more or less as an online journal entry to a few hundred people. Gigabytes at a time vs kilobytes. That's one example of preferential treatment to the "big guys" that honestly do need more access, for they drive bigger, heavier trucks (so to speak, in keeping with the highway simile).

Another argument along those same lines is that we have never really had pure neutrality to begin with. Service providers and ISPs have always played with the accessibility for certain providers, and with good reason. In fact, that same reason I cited above, because they needed it. And because the users are better off with video streamers gaining more access than more basic sites. Perfect example of what I'm talking about: internet telephone service, i.e. voice over IP, or VOIP. That's the ability to make calls on the internet. Remember dial up? Engineers had to give preferential treatment to that form of communication over any other 'traffic' on the internet so it would work correctly, and at its best and most consistent. It made sense. Still does. The same argument is being made today AGAINST net neutrality. Although, while I agree with some of the argument, the slippery slope of that proposal is not worth me streaming 'Sons of Anarchy' on Netflix with no buffer time, vs one or two loading circle icons. I will take slight annoyance over that slippery slope of possibly losing the openness of the internet to big corporations any day of the week.

There is precedent for not having pure 'net neutrality'. There are even good arguments against having net neutrality. One that I haven't mentioned yet is a tiered system of service (look for the article at the bottom of this posting, if interested). And also the FCC is starting to sort of agree with amending their policy stance, albeit with great apprehension. I will leave you with this:

How YOU can keep net neutrality alive!

This is the reason for making the post. It is one thing to know and understand the concept of Internet Neutrality, and to have an opinion on the matter is also very good too (even if you do not agree with me). That's all well and good. But the reason for this discussion is that the FCC is in talks of changing the language on their regulation yet again. This time, they want to meet in the middle with the big companies, thanks to the hiring of the new board of the FCC, which just so happens to be a former player in the telecommunications/cable industry. And he was a big one.

On February 19, 2014 the FCC announced plans to formulate new rules to enforce net neutrality while complying with the court rulings. On April 23, 2014, in a press statement, the FCC announced their new proposed rules which would allow Broadband Internet service providers, such as Comcast and Verizon, the "right to build special lanes" with faster connection speeds for companies, such as Netflix, Disney or Google, willing to pay a higher price. Their customers would have preferential access.

As of May 15, 2014, the FCC officially came up with its new rules, and wants us to give them feedback. That's right. Now that you have some rudimentary knowledge, and hopefully an informed opinion because of it, you get to communicate that opinion to the FCC. You should act on that urge to speak up, I know I will. There will be a 120-day comment period on the proposed rules, with 60 days for initial comments and 60 days for comments that respond to the first round of discussion.

This article, FCC moves forward on net neutrality plan: What now?, lays out exactly how and where to reach the FCC to best get your opinion heard. Also what the FCC's new proposed rules say, to the letter. I hope this has been at least educational. And that the FCC gets a truckload of messages AGAINST preferiential treatment to big corporations.
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