“Net Neutrality in the United States”;
The single most important tool in the developed world, excluding biological necessities, would have to be the internet. It is the tool that has sparked the information age we are living in, where people across the globe are connected by access to social media, and all of the world’s knowledge is placed in our hands, just a few taps away from a Google search bar. Now, it makes sense that when someone attempts to alter the way we in the United States interact with the internet that there is severe opposition. Recently, the most polarizing issue regarding the internet is the central idea of Net Neutrality and regulation of the internet by the federal government. The term Net Neutrality was defined by current Columbia Law School professor Tim Wu in his 2002 essay “A Proposal for Net Neutrality” and for that he is known as the father of the Net Neutrality movement. The term essentially means that information can flow across the internet without being discriminated against on the basis of its content. It ensures that internet service providers may not create internet fast and slow lanes that promote a certain kind of content that favors a certain group of interest. It means that they may not block access to any kind of legal content or hide content of their competitors. However, it also prevents internet service providers from offering competitive pricing for different tiers of service, giving them reason to fight it, as the price tiers allow them to use price discrimination to their advantage, giving them the maximum amount of customers with the maximum amount of revenue and profit.
Without Net Neutrality in the United States, there is public concern that regulation of internet access here could transition in internet in countries with oppressive leadership like China; Chinese leadership censors the internet, ridding it of any information potentially harmful to the governing Communist party’s narrative and ideology. Nearly one third of the world uses internet that is censored, and a threat to Net Neutrality sparked many American’s fears that we could be headed down a path to censorship.
Supporters of Net Neutrality believe the importance of preserving Net Neutrality goes beyond the slippery slope logic that regulation now could lead to tighter regulation in the future. Net Neutrality ensures opportunity for small businesses and startups, who don’t have to fight powerful corporations for access on the internet. It ensures that disadvantaged groups have a voice, as internet service providers can’t block the free speech of these groups under Net Neutrality. Without Net Neutrality, in the words of Tim Wu, the internet will become, “just like everything else in American society: unequal in a way that deeply threatens our long-term prosperity.” (Madrigal)
The premise of regulation of the internet has made its way into various elements of the American political system, both formal and informal. The element that has arguably had the largest impact on the regulation of the internet is the bureaucracy. More specifically, the Federal Communications Commission is the primary mode of the bureaucracy that governs the internet. They hold the powers to regulate interstate and international communications by radio, television, wire, satellite and cable in all United States territories and states. This agency is directed by five commissioners who are appointed by the President of the United States and confirmed by the US Senate, one of whom is named chairman. In order to prevent a partisan monopoly of the agency, no more than three commissioners may be of the same political party.
Given the nature of this agency, they are well suited the deal with an issue like internet regulation and upholding or striking down Net Neutrality. Their right to regulate and issue rulings was granted by Congress in the creation of the commission, and all final rules are sent to Congress for review. When rulemaking, they encourage the public’s comment on the rule, and look to incorporate their thoughts and opinions. Because the FCC is supposed to promote competition among service providers, measures like those by internet service providers to create tiered levels of service for internet speeds in order to cater to the consumer would be something that the FCC would have authority over. Additionally, under Title II of the Communications Act of 1934, common carriers can’t “make any unjust or unreasonable discrimination in charges, practices, classifications, regulations, facilities, or services.” (Berkman). Whether internet service providers should be considered common carriers and subject to the classifications of Title II, or considered an information service like it was classified in 2002 by the FCC, is subject for debate and scrutiny. These past regulatory actions proved to play a critical role in the debate of Net Neutrality, but demonstrate that the FCC and bureaucracy itself was equipped to handle to issue.
Since much of the leadership of the bureaucracy is appointed by the President, it’s natural for the issue of the internet regulation to extend into the office of the President. Presidents can recommend action to those they have appointed to the bureaus and commissions of the federal government. For example, in this scenario regarding internet regulation, the president could recommend action to the chairman of the FCC. While the President can’t actually draft legislation, he can push members of his party to promote his own ideas and implement them on the House and Senate floors. He can also use his threat of a veto to shape legislation before it reaches his desk. In the case of internet control and regulation, the President does have experience prior to the Net Neutrality issue. In 2012, President Obama drafted an executive order named, “Assignment of National Security and Emergency Preparedness Communications Functions,” which in section 5.2 essentially gives the President the ability to turn the internet on or off for private devices during times of emergency, displaying that his powers reach issues regarding the internet.
For more concrete acts beyond the power of the bureaucratic system within the Federal government, internet regulation also extends itself into the legislative branch. Given the powers to draft legislation, Congress plays a crucial role in dealing with an issue like internet regulation. They are the ones who must take input from other groups within the political system, like the President, the public, and lobbying groups advocating for their respective service provider’s interests. Also, since Congress reviews the final rules formed by the FCC, they shape policy coming from within the bureaucratic system. In the case of internet regulation, they could perhaps vote overturn a regulation coming from the FCC, yielding the regulation useless. Largely, Congress has the tools to create and deny acts the could alter the current internet landscape. The recent issue regarding Net Neutrality is not the first time that Congress has used its powers to affect the way services like the internet are controlled; an example is the Telecommunications Act of 1996, the goal of which was to promote competition among service providers. Because this Act was heavily promoted by then President Bill Clinton, it’s a great example of how different elements of government can cooperate in order to achieve a common goal. Informally, members of the House and Senate can use their platform to speak out on issues being debated in other areas of government, to help shift public opinion, for example. Overall, the legislature has in my opinion the most power of any element of the political system to influence internet regulation through the drafting of laws and review of FCC regulations.
A final political element that would play an influential role in internet regulation is the judiciary system. Because the role of the judiciary system to to interpret and apply law to individual cases, it’s easy to see that the court system powers would need to be used when dealing with the issue that is internet regulation; so many differing parties have interest at stake when it comes to the internet, whether it is consumers, service providers, advertisers, or lobbyists, and they all look to the courts to decide the interpretation of laws and regulations that either hurt or help them. While the federal court system, which includes the district courts, the multiple court of appeals, and Supreme Court, can’t actually draft any policy, they change existing policy by the way the interpret laws and decide whether laws are constitutional through judicial review. This practice is especially valuable to the process of evaluating laws regarding internet regulation, while also being used to determine whether the bureaucracy has overstepped its bounds. The court system does have past experience to work off of when they are faced with the Net Neutrality subject, where in 1996 the Supreme court ruled the Communications Decency Act unconstitutional. This component of the Telecommunications Act of 1996, which was meant to protect minors from indecent material while online, was struck down because it was said to violate free speech components of the First Amendment. The court’s ruling prepared them to deal with the issues that surround the implementation of Net Neutrality; the judicial process would be set into motion with the rise of Net Neutrality to the forefront.
Today, the internet is open and free of the prioritized content; all legal content is free of censorship as well. However, the rules that guarantee Net Neutrality were only just upheld this past June. The path to maintaining an open internet in the United States was not without its controversy and resistance. Beginning in 2002, with industry pressure, then FCC Chairman Michael Powell answered the question whether internet service should be considered a common carrier service or information service; the FCC classified it under Title I, deeming it an information service, free of the constricting utility regulations. However, this FCC ruling was directly challenged in 2005 by a California based internet provider named Brand X. They sued the FCC over their classification of internet service, because if internet service was classified as a common carrier, utility style service, then Brand X argued other internet providers would have to share their infrastructure with them; this is something that telephone companies do, as they are characterized as a utility by the FCC. The case moved through the court system all the way up to the Supreme Court; in a 6-3 decision, the court overturned the appeals court ruling in favor of Brand X, meaning existing classification would remain, leaving internet service classified as an information service. This ruling would be especially important considering that the classification of internet service is a major factor in determining the FCC’s control over the internet.
Net Neutrality came to the forefront of public interest in September 2005 when FCC Chairman Kevin Martin published an FCC policy statement on Net Neutrality which built upon Michael Powell’s policies. These four policies let service providers know that the FCC expected consumers to be entitled to full access to all legal content from their choice of legal devices, while also being able to take advantage of competition between service providers. This statement essentially reaffirmed the FCC’s commitment to maintaining an internet with open content. However, scandal hit in 2007 when the Associated Press released a report finding that the service provider Comcast had been blocking and delaying internet traffic using a popular file-sharing service known as BitTorrent. Comcast argued that they were trying to protect their network, as nearly 35% of all internet traffic could be attributed to BitTorrent; the FCC then launched an investigation for violation of their four open internet policies.
In August 2008, in a 3-2 vote among commissioners, the FCC determined that Comcast’s blocking traffic from BitTorrent was unlawful, as they delivered a cease and desist order to Comcast in engaging in their manipulation of their customer’s web traffic. Chairman Kevin Martin defended the commission’s decision, saying, “We need to protect consumers' access," as well as, "while Comcast has said it would stop the arbitrary blocking, consumers deserve to know that the commitment is backed up by legal enforcement." (Reardon 4). Unfortunately for those that favored open internet rules, a Comcast suit brought against the FCC in 2010 would overturn the FCC’s ruling; the US Court of Appeals for the DC Circuit overturned the FCC’s ruling, determining that current laws didn’t give the FCC the authority to hand the cease and desist order to Comcast, effectively eliminating the FCC’s ability to enforce their open internet policies. This was an example of a powerful corporation, the largest cable provider in the country, extending its influence into the political sphere through litigation to achieve an outcome beneficial to its success.
In order to regain their control over internet regulation, the FCC introduced the Open Internet Order, which was passed in December 2010. Within the order were rules that required both wireless and broadband internet service providers to make how they managed their networks public knowledge. Also, it prohibited broadband providers from blocking any and all lawful content or devices on their network, principally reestablishing the FCC’s prior ruling on an open internet. One aspect missing from this were regulations preventing paid prioritization of content, which was criticized by both Democrat and Republican commissioners of the FCC. Director of Public Knowledge, a group lobbying the FCC in favor of full Net Neutrality regulations looked at the order as, “hardly more than an incremental step beyond the Internet Policy Statement adopted by the previous Republican FCC,” demonstrating the dissatisfaction with the new regulations (Reardon 3). However, a lawsuit by another industry leader against the FCC, Verizon Communications, would void the Open Internet Order regulations. The US Court of Appeals for the DC Circuit acknowledged the FCC’s right to regulate, but ruled that current classification of broadband internet as an information service rather than a common carrier nullified the FCC’s ability to implement the anti-blocking rules that were present in the order.