The Simple Deceit of “Restoring Internet Freedom”
The Restoring Internet Freedom order was passed with two FCC commissioners voting for it and two voting against it. Ajit Pai, FCC Chairman, broke the tie with his vote in favor. The only point of this order is to rescind the 2015 Open Internet Order. This 2015 order set out some specific protections for maintaining an open and free internet based on the principles of Net Neutrality as well as reclassifying broadband providers as a Title II service with guarantees for service and competitiveness for smaller service providers.
Why would a bill named Restoring Internet Freedom rescind an order which leveled the playing field for all people using the network and businesses building service providers? Apparently, the FCC left off part of its name. It should really be named the “Restoring Internet Freedom for Large Network Owners to Profit and Dominate the Market Order of 2017”. A brief history of FCC’s Title II and the evolution of internet access helps to illuminate why it has this effect.
The actual 1934 law establishes the FCC sets up its governance, establishes types of communications it regulates, and set forth the initial regulations. Title II is the section of law applying to “common carriers”. The law itself defines a “common carrier” as:
“Common carrier” or “carrier” means any person engaged as a common carrier for hire, in interstate or foreign communication by wire or radio or in interstate or foreign radio transmission of energy, except where reference is made to common carriers not subject to this Act; but a person engaged in radio broadcasting shall not, insofar as such person is so engaged, be deemed a common carrier.
This means that telephone and telegraph systems operating over land lines or some form of radio transmission, as long as the radio transmissions are not a broadcast signal, are under the Title II laws. The biggest restrictions this law places on common carriers are prominently written at the beginning of Title II:
a) It shall be unlawful for any common carrier to make any unjust or unreasonable discrimination in charges, practices, classifications, regulations, facilities, or services for or in connection with like communication service, directly or indirectly, by any means or device, or to make or give any undue or unreasonable preference or advantage to any particular person, class of persons, or locality, or to subject any particular person, class of persons, or locality to any undue or unreasonable prejudice or disadvantage.
b) Charges or services, whenever referred to in this Act, include construed . charges for, or services in connection with, the use of wires in chain broadcasting or incidental to radio communication of any kind.
c) Any carrier who knowingly violates the provisions of this section shall forfeit to the United States the sum of $500 for each such offense and $25 for each and every day of the continuance of such offense.
These sound like reasonable expectations of someone that is communicating a message for hire. Could this apply to the internet? It couldn’t possibly have Title II classification, because no one paid to use the internet. It was a research project with limited scope and was mostly for government research.
Parallel to the development of the internet, was the development of information services — BBSs, CompuServe, AOL, etc. These services only provided messaging, news, and a few other services within their platform (kind of like Facebook, without the internet). Internet access was limited to university researchers, military, and commercial interests who could afford to connect their networks to the newly emerging internet. It wasn’t until much later these information services started building connections from their networks to the internet. When they did, they started calling themselves Internet Service Providers, or ISPs for short.
Dial up modems operating over telephone lines quickly evolved faster and faster, becoming always on direct internet connections. Cable TV evolved from a way of broadcasting TV programs to digital networks running internet protocols. More and more of the common carrier’s network started working on internet based connections and more of the last mile was using the same protocols as the internet.
ISPs began to look more and more like common carriers and common carriers started acting as ISPs. Voice calls started to be carried over the internet on cable internet providers. Eventually, broadband internet became the way telephone service is delivered — inverting the model we had before — and yet the laws did not change. No one stepped up to say they had become the new utilities until Obama acknowledged this and the FCC moved to implement new rules and in 2016 the Supreme Court upheld the decision.
After the 2015 Open Internet Order was passed, Broadband providers had to adhere to the provisions of Title II, but there are additional changes we need to take into consideration from:
- Telecommunications Act of 1996, Pub. LA. №104–104, 110 Stat. 56 (1996)
- Preserving the Open Internet, Broadband Industry Practices (2010)
- Protecting and Promoting the Open Internet Order (2015)
The Telecommunications Act of 1996 didn’t change much about Title II, but it added a new “Part II” to Title II which contains provisions to guarantee access to rights-of-way owned by one company to competing companies, to allow competing companies to tie into another company’s network in order to provide service, to provide unbundled access, the ability to sell any services to another company at wholesale rates for resale to end customers, and to collocate equipment needed to accomplish any of the above provisions. It also allowed the “Baby Bells” to provide long distance calling service. It also deregulated cable companies, this let them grow into behemoths like Comcast.
Preserving the Open Internet (2010) added a few requirements. Keep in mind that fixed broadband does not include mobile providers and the last two protections do not include mobile service:
Transparency. Fixed and mobile broadband providers must disclose the network management practices, performance characteristics, and terms and conditions of their broadband services;
No blocking. Fixed broadband providers may not block lawful content, applications, services, or non-harmful devices; mobile broadband providers may not block lawful websites, or block applications that compete with their voice or video telephony services; and
No unreasonable discrimination. Fixed broadband providers may not unreasonably discriminate in transmitting lawful network traffic.
Was this enough to ensure net neutrality? Unfortunately, no. None of the Title II provisions to encourage competition are present. Even with these protections, Comcast in particular decided that it was reasonable and legal to throttle Netflix traffic and charge an interconnection fee in order to restore the previous level of service to Netflix customers on the Comcast network.
The case of Verizon v. FCC 2014 struck down the last two changes. The court ruled in favor of Verizon’s argument that those two provisions were in effect regulating broadband providers under Title II without classifying broadband as a common carrier.
Issues such as these two informed the Open Internet Order of 2015 as it was formulated, taking into account all of the history and developments of the internet and telecommunications companies. It states:
Because the record overwhelmingly supports adopting rules and demonstrates that three specific practices invariably harm the open Internet — Blocking, Throttling, and Paid Prioritization — this Order bans each of them, applying the same rules to both fixed and mobile broadband Internet access service.
It also contains a heading which reads:
No Unreasonable Interference or Unreasonable Disadvantage to Consumers
or Edge Providers
Ultimately, the order goes a step further to make categorizing broadband providers under Title II easier than following the full regulations:
37. Today, our forbearance approach results in over 700 codified rules being inapplicable, a “light-touch” approach for the use of Title II. This includes no unbundling of last-mile facilities, no tariffing, no rate regulation, and no cost accounting rules, which results in a carefully tailored application of only those Title II provisions found to directly further the public interest in an open Internet and more, better, and open broadband. Nor will our actions result in the imposition of any new federal taxes or fees; the ability of states to impose fees on broadband is already limited by the congressional Internet tax moratorium.
38. This is Title II tailored for the 21 st Century. Unlike the application of Title II to incumbent wireline companies in the 20th Century, a swath of utility-style provisions (including tariffing) will not be applied. Indeed, there will be fewer sections of Title II applied than have been applied to Commercial Mobile Radio Service (CMRS), where Congress expressly required the application of Sections 201, 202, and 208, and permitted the Commission to forbear from others. In fact, Title II has never been applied in such a focused way.
Because this specifically states that it is now Title II, all of the above discussed protections for equal service and promotion of competition apply. Importantly, the provision for allowing competitors to use one’s right of way was not dropped. This is huge for ISPs and connectivity providers just starting out. There are even more protections not mentioned in this article; they are easily found in the the orders. The 2015 Open Internet Order was not only a treasure trove of history and information about the internet and net neutrality, it was and still is a great benefit for any internet based endeavor.
Are there any good reasons to roll back the Open Internet Order? No. There are no good reasons besides simple greed and wanting large companies to grow and make more money by stifling competition.
Where are we now? We still have one protection from the 2010 Preserving the Open Internet Order — broadband providers have to disclose how they manage their networks. So all is not lost, but a lot is. There’s no guarantee that content won’t be blocked. The reasons to ensure Title II governs broadband providers are still there. Soon, we will see what happens when large companies are allowed to stifle competition.
Where do we go from here? There are multiple options, but a lawsuit will definitely follow. If your congressperson and senator funded their campaigns based on promises to Comcast or another large ISP they probably won’t vote to stop the Restoring Internet Freedom [For Large Network Owners to Profit and Dominate the Market] Order the FCC just rammed through.
We as the American people will have to work in our communities to establish our own networks which can be linked together to once more create the internet on the best terms possible. It will take work, coordination, funding, and much planning. If we remain principled and ensure community owned networks remain controlled by those who use it and not large corporations, the end result will be a network with stronger net neutrality than our government is willing to put in place.
This article has been updated. This article initially left out Verizon v. FCC 2014 and stated the provisions to prevent blocking and unreasonable discrimination were still in place. They are, in fact, removed completely.
