Net Neutrality

I’ve been asked several times about the controversy over Net Neutrality. Until now I have casually chalked it up to the obvious conflict of interest between the public good and those who would manipulate and twist anything to advance their pursuit of increased profits and social control. I will try to explain it more clearly.

The technical implications of doing away with Net Neutrality are beyond the scope of this paper. My aim here is to describe the basic facts, regulatory underpinnings, and informed opinions that created Net Neutrality and which justify the classification and regulation of the Internet as a common carrier.

First understand that you might not even notice a difference. And if there is a difference that materially impacts individual consumers, those changes will likely be phased in slowly to reduce backlash — sort of how they first made it impossible to trade plane tickets or boarding passses, then it was “Let us search your bags”, next came metal detectors, then it was “Take off your shoes”, and now we have full-body scanning which is the next best thing to a strip search of every passenger. They’ll kill you a little at a time until you forget or don’t care anymore.

It is necessary to first define what is meant by Net Neutrality. The term is tossed around and used to describe the moving parts of a regulatory system created under the Communications Act of 1934. The Act contains seven major Titles:

• • • Title I: General Provisions
    • Title II: Common carrier
    • Title III: Provisions related to radio
    • Title IV: Procedural and administrative provisions
    • Title V: Penal provisions; Forfeitures
    • Title VI: Cable communications (added by the Cable Communications Policy Act of 1984)
    • Title VII: Miscellaneous provisions

The FCC’s ability to ensure “Net Neutrality” — indeed its prerogative to regulate at all — hinges on whether a service such as the Internet is subject to common carrier rules (Title I or Title II). If the Internet is classified under Title II then providers must provide services to all customers and may not discriminate based on the identity of the customer or the content of the communication. A common carrier is distinguished from a contract carrier or a private carrier. Transportation providers (railroad, airline, shipping, etc.), some public utilities, and wireless telecommunications services are generally subject to Title II regulation. Title II does not prohibit the creation of contract or private carrier services that might provide additional, enhanced, or dedicated services.

If the Internet is not a common carrier system then service providers are (probably) free to use any tools and techniques at their disposal to deceive consumers, degrade content, or disfavor content that they don’t like. Verizon has admitted in court that it would seek to charge certain content providers (think Netflix or Amazon Video or maybe Internet telephone services) for priority service if permitted to do so. If they can charge them for such “premium” service then it stands to reason they can get away with delivering diminished service if their demands for a premium are not met.

This isn’t just about business and profits, though — the same rules that ban profit-motivated shenanigans also prevent carriers from interfering with content for the views it might express. Though Net Neutrality is not applicable to them, consider interference in content by Facebook and Google. Now imagine if the company responsible for delivering water to your house could add coloring or flavoring along the way, or reduce water pressure based on your subscription level, or make other changes based on their feelings about the manner in which you might use that water.

It does not take a change in law or formal regulation to destroy Net Neutrality. All that was needed was to have the FCC remove the common carrier designation so any direction issued by the FCC becomes guidelines or suggestions instead of enforceable regulations. The demise of the Internet as a common carrier was just a matter of time once Ajit Pai slithered from Verizon to his seat at the FCC. I think Shit-Pai made his intentions and lack of concern crystal clear from the beginning. The FCC’s own chief technology officer expressed concerns about net neutrality repeal plan.

Some history behind what is called Net Neutrality:

The Wikipedia article on Net neutrality in the United States provides a good overview of these issues going back to the 1980s — remember when phone companies wanted to charge a premium for using the public switched telephone network (PSTN) to transmit digital signals from FAX machines and modems?

In September 2005 the FCC established four principles of “open Internet” with the purpose of ensuring that broadband networks “are widely deployed, open, affordable, and accessible to all consumers”:

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

• • • • access the lawful Internet content of their choice.
      • run applications and use services of their choice, subject to the needs of law enforcement.
      • connect their choice of legal devices that do not harm the network.
      • competition among network providers, application and service providers, and content providers.

In December 2010 the FCC issued the Open Internet Order with the purpose of providing greater clarity and certainty regarding the continued freedom and openness of the Internet:

To preserve the Internet as an open platform for innovation, investment, job creation, economic growth, competition, and free expression, the FCC adopted three basic rules:

1. 1. 1. Transparency. Fixed and mobile broadband providers must disclose the network management practices, performance characteristics, and terms and conditions of their broadband services;
      2. 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
      3. No unreasonable discrimination. Fixed broadband providers may not unreasonably discriminate in transmitting lawful network traffic.

A court struck down the FCC’s 2010 rules against blocking and unreasonable discrimination. However, the court affirmed the Commission’s conclusion that“broadband providers represent a threat to Internet openness and could act in ways that would ultimately inhibit the speed and extent of future broadband deployment.” An updated version was issued by he FCC in March 2015. At this point the documents are growing too large for a meaningful but brief summary so you might want to look through that document yourself.

Here’s some excerpts from a 2015 NPR article titled “FCC Publishes Full Text Of Net Neutrality Rules“. FCC Chairman Tom Wheeler calls the 2015 regulations “a shining example of American democracy at work.” Wheeler also listed what he calls “bright-line rules” in the order. From his summary:

• • • Ban Paid Prioritization: “Fast lanes” will not divide the Internet into “haves” and “have nots.”
    • Ban Blocking: Consumers must get what they pay for — unfettered access to any lawful content on the Internet.
    • Ban Throttling: Degrading access to legal content and services can have the same effect as blocking and will not be permitted.
    • The new FCC rules apply “to both fixed and mobile broadband Internet access service,” according to the rules.

From NYT FEB. 26, 2015 article:

The F.C.C. is “reclassifying high-speed Internet service as a telecommunications service, instead of an information service, under Title II of the Telecommunications Act. The Title II classification comes from the phone company era, treating service as a public utility.”

From The Breakup of Ma Bell:

“Leonard Hyman, Richard Toole, and Rosemary Avellis concluded that ‘competition helped to expand the market, bring down costs, and lower prices to consumers.’ Because of the negative impact upon AT&T by its competitors, the president of AT&T, Theodore Newton Vail, changed the focus of the company from competition to consolidation. As noted by Thierer, ‘Vail’s most important goals upon taking over AT&T were the elimination of competitors, the befriending of policymakers and regulators, and the expansion of telephone service to the general public.'”

Let that last one sink in: Upon taking over AT&T, Thierer’s most important goals were 1) the elimination of competitors and 2) the befriending of policymakers and regulators. His priorities had nothing to do with providing services, competing, or complying with reasonable regulation.

So what’s my opinion of the decision to kill Net Neutrality? Regulating the Internet as a common carrier service was probably preventing more harm than it could ever cause. Removing regulation does not exactly unleash the universe’s darkest forces but there will surely be consequences as the actors position themselves to exploit the new environment. I have become convinced there is nothing they would not do in the pursuit of whatever ends they are seeking; it’s simply a question of what they think they might get away with.