At least a couple of folks requested that I provide some historic context to my recent post about net neutrality and the Comcast v. FCC decision. If I get anything wrong, I invite my telecom-wonk peers to correct me (with the understanding that this is a gross simplification of a complex subject).
The internet was designed on open protocols, meaning that anyone could use a basic set of standards to innovate on the platform. This is the crux of the neutrality argument, which I won’t get into here. There are plenty of other resources you can check out.
So why are we even having a net neutrality debate? And why can’t the FCC just apply regulation to keep the lanes open?
To decode that, we need to step into the public policy time machine.
The internet — or at least its delivery mechanisms — grew out of the phone lines. Those of a certain vintage will recall the sound of dial-up modems, which connected your computer via your telephone connections. Yes, my young friends, there was a time not too long ago when you couldn’t use the internet and the phone at the same time. A common complaint among moms of the era was that they couldn’t get through because “you were on the AOL.”
Because internet connectivity came via the phone lines, it was regulated under the “common carrier” provisions in Title II of the Telecommunications Act. This meant that, like phone communications, all internet traffic had to be treated equally, with no preferential consideration given to one type of data over another. Everything was peachy keen, unless your mom was trying to call while you were looking at pr0n.
Around 2002, a fascinating doohickey called the cable modem arrived on the scene. This allowed you to connect to high-speed internet, which meant you no longer had to wait an excruciating amount of time for that “Star Wars Kid” video to load. Best of all, you could take a phone call while online!
The FCC at the time was led by a guy named Michael Powell (son of Colin Powell) who was just crazy for deregulation. The way Powell saw it, the FCC had no business overseeing any sector that included a major corporation. The cable industry was keen to sidestep the common carrier rules for internet delivery, because they didn’t want to share their infrastructure with competitors. Again, it’s helpful to imagine the original phone lines, which are to this day regulated as a common carrier. This means that, even if you’re the one who put up the poles and rigged the wires, you gotta let other companies use your lines. That the cable folks would be reluctant to allow others onto their “pipes” makes perfect sense from a business perspective, but it’s not so hot for a communications network.
If the phone lines hadn’t been common carrier, we’d probably never have had cheap long distance, to say nothing of service to rural areas. But I digress.
Under Powell’s leadership, the FCC moved ahead with reclassifying broadband from a “telecommunications service” to an “information service.” This moved high-speed internet — delivered via phone lines and cable — from the common carrier section of the Telecom Act, and threw it into a regulatory grey zone. The Commission’s rationale at the time was that, when people purchase internet service from an ISP, they’re buying a bunch of so-called “distributed services” — AOL email, Prodigy storage, Comcast news page, etc. Maybe that was true in ’02, but now people are merely buying access to the pipe. They get their services from all across the web.
Other companies sued the FCC over its maneuvering. One case, National Cable & Telecommunications Association vs. Brand X Services, made it all the way to the Supreme Court, who upheld the FCC’s right to reclassify. The Supremes did not examine any of the underlying presuppositions regarding internet regulation, but simply said that the Commission had the statutory authority to reclassify.
The result of the Brand X decision was to eradicate competition for the the delivery of broadband beyond the phone and cable giants. This is what we wonks call a “duopoly.” And it’s why, even though I live in a major market like DC, my only choice in non-dial-up internet is Comcast. And trust me, that SUCKS.
Brand X also meant that the ISPs did not have to abide by the non-discrimination principles that apply to common carriers. Still, a subsequent FCC, headed up by Kevin Martin, produced a policy statement with four principles meant to safeguard the open internet.
The principles suggested by Martin are that ISPs should allow users to:
1. send and receive all lawful content
2. use all lawful services and applications
3. use all lawful devices that do not damage the network
4. access all network, service, content and application providers
New FCC Chairman Julius Genachowski has proposed two more principles, which the agency is currently considering making permanent and enforceable via a public rulemaking proceeding (you have until April 26 to file comments).
The new principles would also ensure that ISPs:
5. do not discriminate against lawful content, services, applications, or devices
6. disclose their network management practices
None of the original principles had any real impact on the industry, probably because they’re principles, not actual rules (yet). In fact, the only reason the ISPs have mostly stayed in line is because public interest groups cried foul when they tried to censor, degrade or reroute perfectly lawful content.
Comcast did exactly that when they targeted web traffic delivered over the BitTorrent file sharing protocol. This was confirmed when a reporter tried to upload the King James Bible and had it interrupted by Comcast. The FCC did the right thing and issued an order telling the cable giant to cut it out, which they (supposedly) did. Yet the Commission issued no fines, and seemed content with Comcast’s promises that they’d behave.
That didn’t stop Comcast from suing the FCC. The case eventually ended up at the DC Circuit Court of Appeals, where, on April 6, the order was rejected on the grounds that the FCC lacked the proper legal authority to compel Comcast to stop messing with data. But the court went even further than that, and threw out the entire legal theory that the FCC had been using as its means to oversee the most significant communications platform in history.
This stymies Commission efforts to issue clear and enforceble net neutrality rules and execute huge swaths of its National Broadband Plan. Good times.
Again, the fear here is that the ISPs will simply carve up the web into fast and slow lanes, and your internet will end up looking a lot like your cable TV package. If you do business online (and who doesn’t) the ISPs would be completely free to block or degrade your traffic — particularly if you were offering a product or service that might compete with their own.
And that’s exactly where we find ourselves now.
But there is a silver lining, provided the FCC has the cojones to stand up to the telecom industry. (There’s only been a couple of instances in history where they’ve done so — one was when they broke up the Bell monopoly and another was when they allowed other companies besides AT&T to sell telephones to consumers.)
At the moment, there’s a growing call for the Commission to reclassify broadband internet under a different section of the Telecommunications Act so it can have more solid legal footing to do its work. In a crazy-awesome irony, the much-despised Brand X decision says the FCC has every right to do so. But if they choose this route, there will be litigation. This means the FCC will have to prove to the courts that their reclassification isn’t “vague and arbitrary.” One way to do this is to show that the rationale for the 2002 switcheroo no longer applies.
At the end of the day, the Court of Appeals may have done the FCC a favor by junking it’s presumed “ancillary authority.” But there’s a still a big battle ahead. The telecom and cable companies are trying to paint reclassification as a “nuclear option,” suggesting that Title II oversight will force them to open up their pipes to competitors. Not true. The FCC can choose a light touch — just enough to preserve the open internet and fulfill the proposals in the National Broadband Plan.
If you’re still a bit bamboozled, this excellent editorial in the New York Times explains it really well.
So that’s basically that. If you have any other questions, hit me up in the comments.