Net Neutrality

So I applied for a job which required me to provide a longish writing sample. Other than construction subcontracts, I really hadn't written anything lengthy since college, so I decided to bang out a paper on net neutrality over the weekend. I had a vague understanding of the concepts, but really no firm handle on the particulars so it was a good opportunity to bring myself up to speed. Hopefully you'll find it interesting and informative. I'm always open to constructive criticism, so your thoughts and opinions would be appreciated (except for the layout. I know it's bland, I just haven't sunk a lot of time into this yet). Full text after the jump. 

Net Neutrality

By: Walter Gray

          Debate over the nature and application of legislated “net neutrality” has been heating up lately to the extent that it's impossible to ignore. Facebook newsfeeds are populated with infographics and requests to sign petitions, popular websites host large and prominent banner advertisements urging action, and all manner of large news outlets contain regular op-eds on the debate. The reason behind the intense recent interest is the Federal Communication Commission's announced intent to adopt rules enforcing neutrality standards with respect to content delivery over the internet. Because of the internet's ever-increasing prevalence and saturation into the daily lives of over 39% of the world's population (per 2013 estimates), control over the content distributed via the internet is an extremely high-stakes business and political pursuit. 

            On its face, the concept of “net neutrality” is simple and straightforward – internet service providers (ISPs) maintaining a neutrality with respect to the flow of content through their channels indiscriminate of the content's origin. In practical terms, this would mean that ISPs wouldn’t be allowed to, for instance, grant faster service to their business partners or block content from competitors. Although there are those who would advocate an entirely free market approach with no legislative restrictions on content delivery, almost all federal regulators agree that some form of governance is necessary to protect the interests of the internet-using public. This is where the general consensus ends, and technicalities come into play.

            In order to understand the holistic nature of the debate over internet regulation, it's important to understand the historical context in which the debate takes place, as well as the precise policy details which will have the greatest impact on the future of the internet.

History

            In a 2005 Columbia University Law Review article which first introduced the term “net neutrality”, law professor Tim Wu wrote that “Communications regulators over the next decade will spend increasing time on conflicts between the private interests of the broadband providers and the public's interest in a competitive innovation environment centered on the Internet”. Though Professor Wu was entirely accurate in his prediction, the debate and the struggle for control over the internet began to take shape a few years earlier with a 2002 FCC case colloquially referred to as the “Brand X decision” which addressed the nature of the regulatory classification of cable providers, and whether they would be regulated as “common carriers”. This decision escalated all the way up to the Supreme Court, and provides the foundation for today's controversy.

            The term “common carrier” is a regulatory distinction applicable to service providers which are awarded oftentimes monopolistic use of public ways in exchange for rather stringent governmental oversight. For example, in the case of phone lines, it doesn't make sense from a civil-planning perspective to have redundant sets of phone lines strung along the streets, or buried beneath the roads, so a single set of phone lines is installed and ultimately managed for profit by the local telephone company, but regulators have a say in approving the rates charged to users, and the telephone companies are prohibited from exercising control over who accesses the lines.

            Very long story short, the debate over whether cable internet providers would be subject to “common carrier” regulatory measures came down to a highly technical legal distinction made by the Supreme Court in a 2005 ruling which held that the FCC had previously and justifiably categorized cable ISPs as providers of “information services” as opposed to “telecommunications services”. This distinction is important in that providers of information services are not defined as “common carriers” and are therefore free to exercise authority over the content distributed via their channels. Though a definitive win for the National Telecommunications Association, the telecom industry didn't enjoy absolute freedom as the FCC established a precedent of intervening in particularly egregious cases e.g. a North Carolina ISP preventing its subscribers from using a “Voice over IP” (VoiP) service that allowed users to transmit voice over the internet and thereby avoid using the ISP's affiliated telephone services. The FCC grounded this intervention in its responsibility to regulate interstate and foreign communications, even if such regulations fell short of those imposed upon “common carriers”. The FCC's position was clarified via a 2005 policy statement in which it affirmed its “duty to preserve and promote the vibrant and open character of the Internet”.

            The next several years saw a flurry of back-and-forth between innovative internet-based start-ups demanding access to established content-delivery channels, and ISPs who asserted their rights to exercise control over their networks. This access war would occasionally seep into public view via the interests' respective political mouthpieces, but was largely waged behind the scenes in courtrooms and committee meetings. One of the first real modern-era test cases came in the form of a complaint to the FCC filed by two nonprofit internet freedom advocacy groups. The 2008 complaint revolved around Comcast's interference in its subscribers' use of peer-to-peer networking services (namely, BitTorrent). The complaint alleged that Comcast employed creative and shadowy network management practices such that it intentionally slowed down the transference of a particular type of data. Consistent with the aforementioned 2005 policy statement, the FCC asserted its “ancillary” jurisdiction over the matter, and sanctioned Comcast. Comcast appealed this decision which ultimately resulted in a monumental 2010 appellate-level holding in which the United States Court of Appeals for the District of Columbia Circuit (commonly abbreviated as “D.C. Circuit”) ruled that the FCC does not, in fact, have jurisdiction over Comcast's internet service. This process was more or less repeated upon the issuance of the FCC's 2010 “Open Internet Order” which made its way into the Federal Register before being once again overturned by the D.C. Circuit court in 2014 upon a challenge from Verizon. In consequence of the decision, the FCC found itself without any real teeth with which to enforce its policy goals, as the court asserted that it simply cannot impose common carrier rules on information service providers.

Current State of Affairs

            Newly freed from the FCC's oversight, the telecommunications giants set about refining their business models to maximize profits in the new regulatory climate. Several proposals have made their way into the headlines, the most noteworthy being an offering of “tiered services” i.e. websites would be afforded an opportunity to pay premiums for faster services.

            Proponents of net neutrality passionately argue that while the ability to pay for faster service may sound sensible and rather innocuous, the consequences are potentially catastrophic for free speech. For example, if esteemed Boston NPR affiliate WGBH (widely considered the nation's premier public media outlet) were to lose a bidding war to Boston conservative talk radio station WRKO, local Comcast internet subscribers could find themselves in a situation in which WRKO's live stream was fast, clear, and reliable, whereas WGBH experienced regular service interruptions due to slow data transmission through the ISP.

            Another more extreme example of the issues arising from a lack of enforced neutrality would be if ISPs were to package websites similar to how cable television channels are packaged. For a base rate the consumer would have access only to news and email on the ISP's website. For an extra charge, the consumer could receive access to youtube.com, which would be packaged with foxnews.com, but not npr.com. Perhaps access to WGBH.com would only be accessible with a very high priced package.

            Following the 2014 ruling against the FCC and the telecommunication companies' moves toward exercising greater authority over content flow, there has been a large public outcry for clear and decisive legislative measures to protect the open internet, and prevent ISPs from evolving into gatekeepers of sorts. A widely held misconception is that the FCC is simply dragging its feet in enacting counter measures, but due to its history of having its rules struck down in court, the FCC is concerned with avoiding yet another protracted legal battle eventually resulting in another adverse ruling.

            To that end, on May 15^th, the FCC held its monthly open meeting in which it voted to adopt a “Notice of Proposed Rulemaking” (NPRM). The notice is primarily a statement of intent to the effect that the FCC desires to enact rules to preserve an open internet that's free from a tiered service structure, or any type of ISP content management, but only insofar as such practices are “commercially unreasonable”. While the FCC's intent may be consistent with its previous policy statements, the “commercially unreasonable” standard is widely viewed as problematic in that it's far too vague to be either meaningful or enforceable. In practicality, any enforcement action based upon the FCC’s judgment that a content management practice is “commercially unreasonable” would almost certainly find its way onto the docket of the D.C. Circuit.

Following the adoption of the NPRM, a “public comment” period commences, during which the FCC will receive and review public commentary. Established practice dictates that this period will last at least 30 days, but could potentially go on for much longer. Many advocacy groups have wasted no time in organizing phone and email campaigns – primarily to urge the FCC to reclassify broadband ISPs as “telecommunications providers” and thereby subject them to common carrier rules and ensure that they'll be once and for all prevented from practicing any form of content discrimination.

            FCC Chairman Tom Wheeler has indicated support for the reclassification strategy, and wrote in an April 29^th blog post on FCC.gov that he believes the legality of the reclassification was all but established by the D.C. Circuit Court in its 2010 Verizon ruling. This “open and shut” opinion of the legality of a reclassification is not a view that's shared by all. Chairman Wheeler's expressed support notwithstanding, the FCC hasn't yet announced any firm plans to pursue such a reclassification. The Commission has indicated that it wants to move forward with a vote by year's end, so the monthly meetings are likely to become increasingly interesting as the formal proposals and strategies further come into focus on their way to becoming some of the most significant and consequential reforms of the 21^st century.