This feature article appeared in the June 2017 premiere issue of Hyperlink, a new magazine focused on the intersection of media, technology, commerce, and culture. Purchase a copy. Hyperlink is produced by Winning Edits.
By Ray Sylvester
It’s an unassuming term, one that on its face perhaps shouldn’t provoke much sentiment. But beneath the spiritless exterior lies a roiling complexity, one with the potential to become the defining issue of the information age.
The What & When
One way to understand net neutrality is to ask a simple question: Should Internet service providers (ISPs) be selling you bandwidth, or content? Under net neutrality, it would be the former; in a net-neutral world, all content, all traffic, is treated equally, and your ISP wouldn’t get to pick and choose what you have access to.
The term “net neutrality” was coined by Timothy Wu, a legal professor at Columbia, in a 2003 paper. The following year, Federal Communications Commission (FCC) Chairman Michael Powell announced a set of non-discrimination principles that portrayed a potential foundation for net neutrality rules. He termed these principles the “Four Internet Freedoms” that consumers should be entitled to, including the freedom to access content, run applications, and attach devices of their choosing, as well as obtain information about their service plan.
With the Four Freedoms, Powell drew the notion of net neutrality out of academia and breathed it into the space of policy. But Powell’s principles were merely instructive, and did not carry any regulatory weight. And for the next decade, net neutrality existed only as an ideal, an aspiration that tried but failed to find grounding in the law; between 2005 and 2012, five attempts to pass bills in Congress containing net neutrality provisions fell short.
In 2015, however, things changed. That February, the FCC finally voted 3–2 to regulate ISPs under Title II of the Communications Act of 1934, a regulatory instrument originally used to break up the telephone monopoly in the 1930s. (The Title II designation was revised to be more Internet-appropriate under the Telecommunications Act of 1996.)
Until 2015, ISPs had been classified, under a 2002 FCC vote, as an “information service” under Title I of the 1996 Telecommunications Act, a designation with a much lighter set of regulatory considerations. The initial choice to label ISPs under Title I was a major reason net neutrality rules consistently failed to pass muster in Congress prior to 2015, as it put the FCC’s attempts to regulate ISPs on shaky legal ground. This was shown in 2014, when Verizon successfully challenged a rule passed by the FCC in 2010 rule banning cable television and telephone service providers from preventing access to competitors or certain websites. The rule was overturned in court on the basis that the FCC lacked the jurisdiction to regulate providers like Verizon because they were classified as “information services.” To regulate ISPs in the way the FCC wanted to would have required that these providers be classified as “common carriers”—a designation afforded by Title II that essentially declares a service to be a utility or public good.
As a result of the 2015 recategorization of ISPs under Title II, they are now considered as “telecommunications services” and thus potentially subject to a host of regulations. Potentially, though, because something called forbearance also comes into play. Forbearance means that the FCC can choose to enforce only certain parts of Title II according to their discretion — which makes sense, because, after all, Title II was originally written to regulate 1930s-era telephone companies. Thus, the FCC chose not to apply more than 700 elements of Title II when it issued the 2015 Open Internet Order.
With the 2015 Order, the FCC reanimated what was once an arcane regulatory tool of a bygone era and refashioned it into a mechanism that effectively enshrined net neutrality in the law books. Under Title II, telecommunications providers are prohibited from “mak[ing] any unjust or unreasonable discrimination in charges, practices, classifications, regulations, facilities, or services.” This means providers are barred from blocking access to lawful content or devices, “throttling” or impairing consumers’ access to content, or engaging in paid prioritization — favoring certain content for the benefit of commercial partners.
And for most brands that do business online, especially young and growing small to mid-market companies that can’t compete with the big dogs yet, net neutrality is generally a positive thing. As a hypothetical example, net neutrality means that ISPs are constrained from say, taking money from Amazon.com in return for providing the juggernaut with an Internet “fast lane” to potential customers — one that would effectively disincentivize those consumers from visiting the sites of Amazon’s shallower-pocketed competitors.
And so, Title II-enabled net neutrality is the law of the land in the United States.
If you were looking for an object lesson in how to build a grassroots movement, you might want to study the emergence of the pro-net neutrality camp over the past few years.
One of the most prominent pro-net neutrality coalitions, Battle for the Net, draws from a strikingly broad array of supporters, from Mozilla to the Electronic Frontier Foundation, to Google, Tumblr, and Kickstarter, plus a host of smaller organizations and individuals.
One of those organizations is Free Press, an advocacy group that runs the Save the Internet coalition, an initiative with a base of support ranging from large tech companies to small nonprofits and individuals. Says Timothy Karr, senior director of strategy at Free Press, the movement found its legs back in 2005–2006 when Congress was debating a bill that would have rewritten the 1996 Telecommunications Act and dealt a blow to net neutrality, in Free Press’s view. “We successfully defeated that bill, which was an early flexing of the grassroots muscles of the open internet movement,” says Karr. “And that fight has come along all the way to the current day.”
Although Free Press has been fighting for net neutrality for over a decade, the issue arguably failed to firmly grasp the popular consciousness until 2014. The watershed moment came in the form of a viral Internet phenomenon: comedian and Last Week Tonight host John Oliver’s 2014 video segment on net neutrality prior to the FCC vote that led to the 2015 Open Internet Order. Oliver’s bit offered a rare humorous take on a complex topic, one that thrust net neutrality out of semi-obscurity and into the limelight, and unleashed a previously muted groundswell of support for the issue. (The video helped spur 45,000 comments on the FCC’s site, causing it to crash.)
On the other side of the issue, fans of net neutrality draw from a wide and vocal cross-section, but the “anti” camp is far from underrepresented. This side includes, most prominently, the massive companies that provide access to the Internet across the country: Comcast, AT&T, and Verizon. Other critics of net neutrality include a number of economists, as well as technologists like Netscape co-founder Marc Andreessen and billionaire investor Peter Thiel, and tech companies such as IBM, Intel, Cisco, and Nokia.
Beyond the binary of for and against, there is one other group that has played a more complex role in the net neutrality debate: the diverse collection of companies that provide content and services on the Internet, also known as edge providers. Although most edge providers are generally in support of net neutrality, a number of these companies have come to straddle both sides of the issue as a result of the way their businesses have evolved. Indeed, as these edge providers grow and their businesses diversify — particularly as they come to dominate their respective niches, and as they cross over from content providers to access providers — things often start to get murky when it comes to their stance in the net neutrality debate.
Consider, for example, Google. Google has expanded well beyond just a search engine, branching into multiple new domains, including the ISP-like Google Fiber project. Although an early and vocal supporter of net neutrality, in an about-face, the company teamed up with Verizon in 2010 to propose a set of rules that would have exempted wireless networks from net neutrality regulations. At the time, a number of other tech companies, notably Facebook, denounced Google’s proposal. But then in 2014, Facebook and Google, along with Amazon, wrote to the FCC criticizing a plan for an Internet “fast lane” and demanding “true net neutrality.” Which is it, Google?
Or take Netflix, which in 2016 accounted for 37 percent of peak download Internet traffic. (That’s 37% of all peak download Internet traffic.) This is a company that would stand to lose immensely if its services were to be throttled or deprioritized by an ISP. But at the same time, Netflix has grown in its market to the degree that it has the clout to become a bully in its own right. When you reach the top of the hill, well, you start to get a different view — and Netflix has started to realize that it’s got some muscles to Net-flex.
“Weakening of US net neutrality laws, should that occur, is unlikely to materially affect our domestic margins or service quality because we are now popular enough with consumers to keep our relationships with ISPs stable,” Netflix smirked in a letter to its shareholders in January 2017. Although it was not an outright rebuttal of net neutrality, this comment was a striking turn for a company that once claimed, in response to the 2014 decision that struck down the FCC’s attempt to enforce net neutrality in 2010, that it would “vigorously protest and encourage our members to demand the open Internet they are paying their ISP to deliver.” It’s good to be the king.
Meanwhile, Facebook, seemingly the good guy in this story so far, hardly has its hands clean, thanks to the minor imbroglio of Free Basics, a service that aims to bring free but limited Internet access to sixty-two countries and municipalities around the world. Free Basics is Facebook’s bold move from content provider to access provider, and a classic example of zero-rating — the practice of favoring certain applications or services on a network by not charging users to access them, one that runs squarely counter to the spirit of net neutrality. Free Basics has, not surprisingly, drawn significant criticism from pro-net neutrality quarters, and in February 2016, it was struck its most significant blow by regulators in India, who banned the service from the country.
So why exactly is net neutrality important? Proponents believe net neutrality is critical to ensuring a level playing field online and preventing ISPs from compromising and exploiting both edge providers and end users. For net neutrality proponents, practices like zero-rating and paid prioritization are a threat to the ideal of an open Internet. They fear an online reality dictated by the whims of ISPs free to limit people’s ability to access the content of their choosing, and to charge consumers and edge providers exorbitantly for the bandwidth they use.
On the other side of things, net neutrality opponents see zero-rating and paid prioritization as tools to enhance competition — as the unfettered market operating optimally. They fear the heavy hand of regulation, arguing that if the government is able to dictate how ISPs provide and price their services, it will be hobbling innovation in this dynamic, fast-growing industry. Unsurprisingly, the ISP lobby has a solid core of support among small-government Republicans in Congress.
Opponents also argue that net neutrality has hurt the ability of ISPs to invest in upgrading their infrastructure. But these claims don’t seem to square with the numbers. Says Karr, “We’ve looked at [the ISPs’] analysis, and we’ve done our own, based on the actual SEC [Securities and Exchange Commission] reporting requirements of these companies, to show that investment is up.”
“Their arguments that net neutrality somehow is causing harm to businesses, to the business of the Internet, don’t hold much water,” he says.
It’s not just investment that’s hurting, though, say the ISPs. They also argue that net neutrality rules would negatively affect consumer choice — that it’s not in line with consumers’ best interests. What people really want, they say, is free content. According to a study by CTIA, a lobbying group that represents Verizon and AT&T, two-thirds of consumers are more likely to choose a mobile provider if they offer free content.
In a narrow sense, this may be true. It doesn’t on its own, however, make a compelling case against net neutrality, simply because, even if CTIA’s numbers and research are valid, consumers don’t just want free content, in a vacuum — they also believe in fairness. A 2014 survey by Consumer Reports found that 58 percent of consumers also agreed that “the government should not allow Internet service providers to charge companies to deliver their content with greater priority than other companies”; only 16 percent disagreed.
But as Matthew Starr, director of policy at CompTIA, an IT industry trade association, points out, parsing out the pros and cons of something like zero-rating isn’t so straightforward. Speaking of the scenario in which an ISP may zero-rate certain content so that it doesn’t count against a user’s data cap (known as a data cap exemption), Starr believes that in some cases, this practice “does give consumers more of what they want. It gives them the opportunity to take advantage of more data when you don’t have an unlimited data plan.”
“On the other hand,” he says, “you could argue that these are huge companies that can afford to participate in these programs, and they’re getting a leg up on potential smaller competitors who might be trying to make their way into the market. So it’s a little tough.”
Another argument proffered by net neutrality opponents is the idea that edge providers profit inordinately from the bandwidth they use, and that rules restricting ISPs’ ability to price discriminate keep the edge providers from paying their fair share. The argument is based on the assumption that edge providers like Google and Netflix don’t actually pay (or don’t pay very much) for the bandwidth they use to make money providing content and services online. But the edge providers do pay for that access, and quite a lot. Critics of this argument say that letting ISPs charge different prices to different edge providers would create a mafia-like endgame in which edge providers might have to pay extra “shakedown” fees to ISPs to make sure their content and services aren’t throttled.
So what about the idea that practices like zero-rating help enhance competition in the marketplace and increase consumers’ options? Roslyn Layton, a visiting fellow at the American Enterprise Institute and a member of President Trump’s FCC transition team, agrees. Says Layton, “Where would zero-rating be most helpful, is if Netflix has a competitor, the competitor would be most interested in offering zero-rating, because it’s hard for you to switch away from Netflix and YouTube. They are established platforms that you like, and for you to try ‘Bob’s Netflix,’ you have to give something of an incentive. So it’s entrants, more often than incumbents, who want the zero-rated service.”
That sounds nice in theory. But how often could this be the case in reality? We’ve seen that most cases of zero-rating so far involve ISPs prioritizing either their own content (in 2016, AT&T zero-rated content from DirecTV — which it owns — so it wouldn’t count against customers’ data caps), or content from already-popular providers that arguably don’t need a leg up (such as T-Mobile’s 2015 “Binge On” promotion, which provided data-cap-exempt access to services like YouTube, Netflix, and HBO NOW).
Starr agrees to some degree that zero-rating could be beneficial to new entrants: “I think that it’s true to some extent that it could provide an opportunity for an upstart company to come in and find a way to get an advantage.” But at the same time, he says, “You need to have some capital to be able to compete.”
Karr, however, is skeptical, seeing this idea as more wishful theory than plausible reality: “I suppose there’s a model where small companies are given equal benefit in zero-rating, but I haven’t seen it yet.”
The Where (We’re Going)
The tail end of the tenure of the Obama administration saw a firming of net neutrality laws with the classification of ISPs under Title II via the 2015 Open Internet Order. But the Trump administration has brought with it significant question marks about its fate.
Much of the uncertainty centers around Trump’s pick as FCC Commissioner, a lawyer and net neutrality opponent named Ajit Pai. Pai was one of the FCC’s dissenting votes against the 2015 Open Internet Order, which he called a “heavy-handed solution that won’t work for a problem that doesn’t exist.” He has also said he believes the FCC is beset with “regulatory underbrush,” and that the agency needs “to fire up the weed whacker and remove those rules that are holding back investment, innovation, and job creation.”
Pai’s comments about clearing the weeds at the FCC have stoked fear in the minds of net neutrality supporters everywhere. It’s the first time in a long time that the words of an FCC Commissioner have held so much weight and stirred so much anxiety. But are these fears overblown? Even Pai’s critics concede that there’s a certain level of “reading the tea leaves,” as Free Press’s Karr says, when it comes to interpreting Pai’s statements about net neutrality and the FCC’s regulatory regime. Where exactly does he plan to take that weed whacker?
But even if observers are reading Pai’s intentions correctly, they may be overestimating his ability to change the way the FCC regulates telecoms. Says Starr, “There’s been a lot of reporting on, ‘Oh, he’s going to do away with the rules.’ It’s not so easy! There’s this little thing called the Administrative Procedure Act [APA] that the FCC would need to follow.”
Under the APA, the FCC can’t just decide to change the rules and that’s that. First, they have to provide notice of a proposed rule, and then solicit comments on the proposed change. As we saw in 2015 prior to the Open Internet Order, consumers, under the influence of John Oliver, were more than happy to take the opportunity to weigh in. And the preponderance of public comments under any future proposed change is likely, as it was two years ago, to fall on the pro-net neutrality side. Says Starr of a possible attempt by Pai and the FCC to undo Title II, “It’s probably not going to be a very popular decision if they try to do that.”
Karr agrees: “The FCC knows — something that it learned in 2014–2015 — that any public proceeding will unleash the whirlwind of grassroots support for net neutrality.”
As significant as a renewed public outpouring is the legal burden the FCC would need to overcome to be able to reclassify ISPs again. They can’t just change their mind about Title II with a solid base of legal reasoning. According to Starr, “The FCC’s going to have a pretty high burden to prove that, ‘Well, in 2015, we decided broadband should become a communication service. In 2017 or 2018, just kidding, it’s not actually one! We were wrong.’”
On the other hand, observers wouldn’t be chastised for believing that Pai has already begun the process of unwinding Title II. Instead of one bold stand, his strategy so far appears to be death by a thousand cuts. In February 2017, the FCC under Pai rescinded a claim made in a report published during the final days of Chairman Tom Wheeler’s tenure that AT&T and Verizon Wireless had violated net neutrality rules with paid data cap exemptions. As part of the February decision, the FCC also informed Comcast and T-Mobile that it was closing investigations into their zero-rating practices.
Although the net neutrality rules under the 2015 Open Internet Order don’t specifically ban data cap exemptions, the FCC evaluates zero-rating on a case-by-case basis. In this case, the FCC had initially launched an informal investigation into the four companies in December 2016, and later that month issued a preliminary report accusing AT&T and Verizon of violating net neutrality rules by favoring their own video services over competitors’. But the February 2017 decision reversed all that — the ISPs were off scot-free.
Mignon Clyburn, the only Democrat on the FCC, criticized the reversal as what she saw as an end-run around the APA — the procedural framework that’s supposed to prevent the FCC from abusing its powers and making rule changes on a whim. Clyburn described how her office was given just two days to review the FCC’s decision, then was rebuffed after asking for an extension — what she saw as a failure on Pai’s part to “comply with the reasoned decision-making requirements of the APA.” Said Clyburn in an official statement, “It is a basic principle of administrative procedure that actions must be accompanied by reasons for that action, else that action is unlawful. Yet that is exactly what multiple Bureaus have done today.”
The next chip in the armor of net neutrality under the still-young Pai FCC came with the defeat of the FCC’s broadband privacy rules in March 2017. In March, the House of Representatives voted to override an FCC regulation, first adopted in October 2016, that limited the freedom of cable and telecoms companies to trade personal data about their customers to advertisers. Although fifteen House republicans voted against it, the measure had passed with full Republican support in the Senate one week before.
With broadband privacy protections neutered, Pai has gestured toward a next step: handing oversight of those privacy rules to the Federal Trade Commission (FTC). “Moving forward,” said Pai in an official statement after the FCC’s March 2017 decision to undo broadband privacy protections, “I want the American people to know that the FCC will work with the FTC to ensure that consumers’ online privacy is protected through a consistent and comprehensive framework. In my view, the best way to achieve that result would be to return jurisdiction over broadband providers’ privacy practices to the FTC, with its decades of experience and expertise in this area.”
Such a move also has strong support among Republican lawmakers. But shifting consumer privacy protections to the FTC would also be the best way to weaken those protections, as the FTC lacks the ability to adopt rules it can impose on companies. More than that, though, the FTC is currently barred from regulating common carriers at all.
As a result, shifting broadband provider oversight from the FCC to the FTC would require yet another reclassification of ISPs. The FTC would also face a further handicap in its ability to regulate ISPs due to a federal appeals court ruling in August 2016 that exempted AT&T from FTC oversight — even when the company offers non-common carrier services.
These regulatory hurdles at least provide at least the illusion of a bulwark against a devolution of consumer privacy rules. But in the wider picture, the alignment between the FCC and the majority party in Congress on the general question of net neutrality and privacy rules should spell a warning. Even if Pai and Congressional Republicans aren’t going full-steam ahead in an attempt to drown these protections, they certainly seem to be testing the waters.
The First Next Move
Is the fox guarding the hen house at the FCC? Pai is no fan of Title II, and he also seems inclined to devolve the FCC’s oversight of ISPs away from the agency entirely. For many net neutrality supporters, every comment and action out of the Pai FCC has sounded another ring on the death knell for the open Internet.
Others, though, see this concern as so much needless hand-wringing. In a January 2017 online article for Forbes, Internet industry analyst Larry Downes decried much of the rhetoric around the potential demise of net neutrality under the Pai FCC, and cautioned against what he sees as an intellectually sloppy conflation — one in which an unwinding of Title II-type regulation of ISPs is seen as equivalent to the end of the open Internet as we know it. In his view, according to many grassroots net neutrality proponents, “Objecting to utility treatment for access providers is somehow turned into a direct attack on the open internet and everything it stands for, including freedom of speech, democracy, and free content and services.”
But is net neutrality still possible without Title II classification of ISPs under the FCC? Is there a place for another form of regulation that would ensure net neutrality, perhaps one with a “softer touch”? Layton, who has studied net neutrality regimes in a number of countries, says Title II is just “one of maybe fifty different methods that we could use, and it’s probably not the best method, because it’s unsustainable. If you really cared about this, you’d want to enshrine it in legislation the way fifty other countries do today.” She argues that many countries have had success with “soft rules” that threaten regulation of ISPs if they contravene net neutrality guidelines rather than “hard rules” based on de facto regulation of these providers.
With Pai’s slow-motion chokehold on the FCC, we may see this fight move squarely into the halls of Congress again, the last bastion of the legal basis for net neutrality. Says Karr, “I don’t want to give away any secrets, but I’m sure the net neutrality opponents already know that the only real way that they can undo these rules is by rewriting the Telecommunications Act, by passing legislation.”
Judging by official statements, the Republican Party is ready to make this happen. According to the Party’s official 2016 platform, “The survival of the internet as we know it is at risk” on account of the net neutrality rules effected during the Obama administration. But on the ground, the party’s net neutrality opponents are taking more of a wait-and-see approach than their hair-raising position statement suggests.
As Karr says, “The issue has become a bit of a hot potato between the FCC and Congress,” with neither side striking out to make a change. Representative Marsha Blackburn, head of the Energy and Commerce Subcommittee on Communications and Technology, despite her outspoken opposition to net neutrality, isn’t exactly chomping at the bit to undo the legislative basis of net neutrality. In remarks at a February 2017 press conference about her Subcommittee’s agenda, Blackburn was circumspect about tackling the net neutrality question, saying, “Let’s let the FCC go in and do what they are able to do, make the first move on that, and then we’ll be able to revisit that situation.”
Who will blink first is anyone’s guess. But as the dizzying early months of the Trump administration have made clear, things can change quickly. It may not be long before net neutrality faces another existential challenge, less than two years after the 2015 Open Internet Order handed it a seemingly impregnable base of support.
The Real Scarcity
One variable that could redefine the net neutrality debate — a potential deus ex machina for the whole question — is technology. Specifically, the emergence over the next five years of ultra-high-speed wireless standards could, in one fell swoop, evaporate much of the concerns swirling around both bandwidth availability and infrastructure costs, and make data caps a relic. But what if the whole question of bandwidth limits is an illusion? What if data caps and zero-rating are simply unnecessary?
Indeed, there is evidence that the extra cost to consumers of a single unit more data isn’t commensurate with the provider’s cost for that unit. Data simply isn’t as costly as ISPs want us to believe — at least, not any longer. The days of heavy investment in wired infrastructure are pretty much over, making the infrastructure costs associated with adding bandwidth increasingly negligible — but ISPs are still charging premium prices for that bandwidth.
What’s particularly damning is that even the ISP executives are acknowledging this argument. Jerry Kent, CEO of Suddenlink, told the company’s investors in 2015 that the age when infrastructure spending actually aligned with consumer pricing has passed: “Those days are basically over, and you are seeing significant free cash flow generated from the cable operators as our capital expenditures continue to come down.” And as Dane Jasper, CEO of Sonic (formerly Sonic.net), an independent ISP based in Santa Rosa, California, told CIO in May 2016, “The cost of increasing [broadband] capacity has declined much faster than the increase in data traffic.” A few years ago, Sonic spent about 20 percent of its revenue on infrastructure. Now? Their infrastructure costs have declined to roughly 1.5 percent of revenue.
Undoing data caps is the mission of Stop the Cap!, a nonprofit advocacy group that claims to be solely consumer supported, with no industry ties. Stop the Cap!’s mission statement points to what they see as “considerable evidence demonstrating no justification for usage caps, consumption-based billing, or tiered pricing based on consumption as public financial reports from providers continue to demonstrate resilient profitability for broadband services at current flat rate pricing.” Translation: Broadband providers can still make money without capping our data and charging us when we go over.
And if data caps are unnecessary, then zero-rating is also, well, kind of pointless. It’s an argument Free Press’s Karr makes. Says Karr, “[Zero-rating] is unnecessary. It’s all predicated on this idea that ISPs need to impose data caps in order to manage their networks. And studies have shown that that’s a false limit — that they placed upon network data in order to treat it like it’s a commodity, something that they can charge by the bit for.” As Techdirt’s Karl Bode argued in a June 2016 blog post, data caps are “effectively just a toll on captive broadband customers.”
Opponents may argue that ISPs are within their rights to price their services as they like and charging what the market will bear. That may be true, but a lack of competition in the ISP marketplace weakens this argument. On the whole, consumers simply don’t have many choices when it comes to Internet service providers. According to the FCC, large portions of the country are without broadband Internet access. In 2016, 10 percent of all Americans (34 million people) — and 39 percent of rural Americans (23 million people) — lacked access to broadband service, defined as speeds of at least 25 Mbps upload/3 Mbps download.
And for those who do have access, options are slim. According to the Department of Commerce, only 37 percent of the population had a choice of two or more providers at broadband speeds as of 2014. To put this heavy concentration of Internet service providers in other terms, as the Department of Commerce reports, the five largest ISPs serve over three-quarters of the roughly 84 million Internet customers in the United States.
To ease the issue, several cities across the country have built their own municipal broadband networks. A number of others have tried, but are blocked by laws in at least nineteen states that inhibit or prohibit the creation of such networks. In 2015, the FCC tried to overrule state laws in Tennessee and North Carolina that were blocking municipalities in those states from building their own networks. It was an issue that hit at the heart of the American experiment — should the Federal government be allowed to encroach on states’ rights? The crux of the argument in the 2015 case was that Internet-based commerce crosses state lines and thus falls under Federal jurisdiction. But the FCC’s attempts were struck down by a Federal court in August 2016, and the agency later declined to appeal the decision.
The tussle between states, municipalities, and the federal government appears far from settled, though. In March 2017, six Democratic Senators introduced the Community Broadband Act of 2017, a Congressional bill that would amend the 1996 Telecommunications Act to prohibit state, local and tribal governments from enacting laws that prevent or limit cities and other municipal entities from offering high-speed broadband service.
Others, meanwhile, are looking to the government to sweep its hand and nationalize the issue away. Key among them is Harvard Law professor Susan Crawford, who advocates for a national broadband solution that would ensure each citizen has Internet access that is affordable and accessible, in a manner similar to other utilities like electricity and water. It doesn’t hurt to dream.
As we choose our path forward, we need to remember how we got here. We got here with smart government, not absent government. We got here with a government that was pro-competition, not pro-incumbent. We got here thanks to policies rooted in reality, not ideology.
— Former FCC Chairman Tom Wheeler, in remarks to the Aspen Institute, a leadership nonprofit, January 2016
In net neutrality land, “reality” is hard to define. Is net neutrality hindering ISP investment, or should we trust the SEC filings that suggest otherwise? Is the FCC’s net neutrality regime the disastrous, government-overreaching equivalent of Obamacare? Or is it instead a small community bridge overrun with lawn-destroying ne’er-do-wells? Will getting rid of Title II lead ISPs to zero-rate and ultra-filter our online experience into an overpriced, culturally deficient wasteland?
Scratch below the surface of the net neutrality debate and you’ll uncover a dispiritingly familiar level of partisan rancor and rhetoric. Net neutrality opponents are operating under a “right-wing delusion” of government censorship of Internet content, says liberal watchdog Media Matters. Seton Motley of right-wing website Daily Caller points to net neutrality’s many supposed downsides as an “overflowing basket of deplorables.”
But are these slings and arrows just a partisan façade? Are they unduly amplified fringe views that obscure the true nature of net neutrality support in the US? Karr believes so, arguing that net neutrality “seems to be a political issue only inside the beltway, where you have members of Congress who are receiving considerable donations from the phone and cable lobby — who’ve characterized net neutrality as, in the words of Senator Ted Cruz, ‘Obamacare for the internet,’” he says.
“But if you actually look at public polling,” Karr continues, “Republican voters by a significant majority — these are people outside of the beltway — say that they support net neutrality protections. So this idea that it is highly partisan and depends on who’s in the White House, I think, doesn’t bear out once you actually talk to people at the grassroots level.”
Understanding the contours of the net neutrality issue, even in a simple fashion, is akin to sculpting a vast fog; it’s immense and shifting, and like any vast, swirling fog, difficult to see through.
For one, the framework of the Open Internet Order rests partly on the relationships between three types of entity: broadband providers, edge providers, and end users. The FCC defines an edge provider as “any individual or entity that provides” either “any content, application, or service over the internet” or “a device used for accessing any content, application, or service over the internet.” And an end user is defined simply as “Any individual or entity that uses a broadband internet access service.”
But in an era that’s seen the rise of user-generated content, that distinction is increasingly irrelevant. For sure, there’s a material difference between a large corporate entity like Netflix and an individual person. But the end user–edge provider binary, as David Post wrote in the Washington Post in October 2014, “ignores the fact that the internet provides a smooth, scalable path that allows all end users to grow businesses and become future YouTubes, Amazons and Googles.” End users are also commonly content producers, and edge providers are often content consumers. As such, the mechanism of equal access afforded by net neutrality is a crucial thread in the fabric that makes it possible for businesses to grow and scale online, for mom-and-pops to emerge into the small and mid-tier digital brands that have become such a vibrant part of the online ecosystem — and for a select few of these brands to scale even greater heights and become world-beaters in their own right.
And if the blurry distinctions between consumers, content providers, and content producers only serve to further complicate the picture of net neutrality, anyone one who finds him or herself flustered by the whole issue can take comfort in the fact that even our elected officials get it wrong, sometimes spectacularly. Even a scarcely informed consumer probably has a better understanding of the issue than Senator Ron Johnson of Wisconsin, who once described net neutrality in the following way:
“Let’s say a group of neighbors want to build a bridge over a creek so they can cross over and talk to each other a lot, so it’s really for a neighborhood, maybe a dozen people. But then they find out that the local government is going to require that that bridge is open to the entire community of a million people, no prioritization whatsoever. They don’t get to cross first to go see their neighbor. A million people can come onto their property, ruin their lawns, and walk over that bridge.”
In Johnson’s world, data is people, and… where do the lawns come in? As Techdirt’s Mike Masnick wrote in a blog post in March 2017, net neutrality is not about a few people building a bridge in their community. It’s “about how massive, giant internet access providing monopolists and duopolists want to double dip and double charge for the value provided at the endpoints, rather than being satisfied with getting paid for the value they provide in connecting the endpoints.”
Johnson’s comments were addressed at Commissioner Pai, to whom the senator offered a golden chance to set him straight: “Isn’t that a pretty good analogy in terms of what net neutrality is all about? … Tell me where that analogy’s maybe not accurate,” Johnson asked the FCC chairman.
In response, Pai could have gently put the Senator’s misbegotten mischaracterization out of its misery.
Instead, the Chairman doubled down on the delusion:
“Senator, I think you’ve put your finger on one of the core concerns, which is that all of us favor a free and open Internet, where consumers can access lawful content of their choice.”
Pai then sealed Johnson’s misrepresentation with verbal super glue, asserting that “[the FCC’s] goal, to use your analogy, is to make sure that those bridges continue to be built, that they continue to be maintained and upgraded, as traffic modernizes over time.”
In doing so, Pai sidestepped the Senator’s awful analogy, opting to save face through an evasive, mealy-mouthed expression of accord, and doing a disservice to every citizen out there already confused enough about the whole debate.
Listen to the episode on net neutrality from the first season of our podcast, Hyperlink Radio, right here.
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