Battle for the Net: part 1

Modern history of net neutrality

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Think of a website you like.

What do you get from that website that makes you like it? TV shows? News articles? Email? Porn? Cat GIFs? (I’m not here to judge.)

Everybody needs cat GIFs. By Mkamale90, from Wikimedia Commons
Everybody needs cat GIFs. By Mkamale90, from Wikimedia Commons

Now, think about this: how much are you willing to pay to use that website instead of its crappy competitor that your internet service provider made? When Google started Gmail, imagine AOL saying “you can access to this site for only $50/month”. I’d be displeased.

How long are you willing to wait for your website of choice to load, rather than going to the crappy (but quickly-loading) competitor your ISP runs? Imagine watching Orange is the New Black on Netflix and having to wait two hours while it buffers, even though the bland reality shows and sitcoms on Comcast’s video site stream in real time full HD. I’d be mad.

Net neutrality guarantees this will never be a problem. It means Gmail will be free, Netflix will be fast, and you can giggle at all the cute cat pictures your heart desires.

Whenever a legal issue comes up that I feel strongly enough about to make a blog post on, it’s already seen a lot of sensationalism and highly opinionated reporting. So I like to go to the original sources: the laws and policies. I’ve done this before with PIPA and CISPA, former proposed copyright laws, and now for net neutrality, I’m going to dig into telecommunications law.

2010 Open Internet Order

The modern story of net neutrality actually starts with the Open Internet Order, a regulation issued by the Federal Communications Commission in 2010. That ruling laid out three core principles, “grounded in broadly accepted Internet norms”, that the FCC considered essential to preserving an open internet.

  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.

The next several pages of that document go on to explain why the FCC believed that an open internet was essential to advancing technology and creating competitive markets online. A large part of that was motivated by a call for input from the public, in which over 400,000 comments were submitted.

This process has made clear that the Internet has thrived because of its freedom and openness—the absence of any gatekeeper blocking lawful uses of the network or picking winners and losers online. Consumers and innovators do not have to seek permission before they use the Internet to launch new technologies, start businesses, connect with friends, or share their views. The Internet is a level playing field. Consumers can make their own choices about what applications and services to use and are free to decide what content they want to access, create, or share with others. This openness promotes competition. […]

Shortly after the rules were implemented, Verizon sued the FCC, arguing that the Commission’s rules were illegal — that is, the FCC was exceeding its legal authority to regulate internet service providers. Three years later, the D.C. Circuit Court resolved the case mostly in Verizon’s favor: the FCC did not have the right to prohibit ISPs from blocking or discriminating among the signals they carried. The latter two of the three core principles of the 2010 ruling were invalid.

The court’s reasoning for this decision rested on the fact that ISPs were considered “information services” instead of “common carriers”. What’s the difference? For that we have to go to the law.

Information services

When the court uses the term “information service”, it’s referring to a definition in the Communications Act of 1934, or in its modern form, title 47, chapter 5 of the United States Code. One of the early sections of the law includes the definition:

The term “information service” means the offering of a capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications, and includes electronic publishing, but does not include any use of any such capability for the management, control, or operation of a telecommunications system or the management of a telecommunications service.

This is a very general definition. As applied to internet companies, it includes not only internet service providers, but also email providers, VPNs, and more. Most systems that electronically convey information from one point to another qualify as information services.

As an information service, an ISP is subject to certain rules, but not many of them. Actually, I hunted through most of chapter 5 and only found three:

  • It must allow for the exchange of information with peer services (section 256)
  • If it owns local infrastructure (like internet cables or fiber optics), it has to share that with other service providers that meet certain conditions (section 259)
  • It can’t reveal unencrypted communications to anyone other than the recipient (section 605)

There could be a few more that I missed, but I think the point stands that information services are fairly free to handle the information they carry however they want. There’s not much the FCC can do about it, as the D.C. Circuit Court’s ruling makes clear.

But wait, who says ISPs are information services in the first place?

I mean, they don’t have to be. Nothing in the law says so. It’s actually the FCC itself that made that decision in a 2002 ruling on cable broadband classification (and I’m focusing on cable because that’s currently the most common type of broadband internet). It’s a long paragraph but I think this one is worth reading, because it shows some of the reasons why the FCC wants to treat ISPs as they do.

  1. E-mail, newsgroups, the ability for the user to create a web page that is accessible by other Internet users, and the DNS are applications that are commonly associated with Internet access service. Each of these applications encompasses the capability for “generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications.” Taken together, they constitute an information service, as defined in the Act. Consistent with the analysis in the Universal Service Report, we conclude that the classification of cable modem service turns on the nature of the functions that the end user is offered. We find that cable modem service is an offering of Internet access service, which combines the transmission of data with computer processing, information provision, and computer interactivity, enabling end users to run a variety of applications. As currently provisioned, cable modem service supports such functions as email, newsgroups, maintenance of the user’s World Wide Web presence, and the DNS. Accordingly, we find that cable modem service, an Internet access service, is an information service. This is so regardless of whether subscribers use all of the functions provided as part of the service, such as e-mail or web-hosting, and regardless of whether every cable modem service provider offers each function that could be included in the service. As currently provisioned, cable modem service is a single, integrated service that enables the subscriber to utilize Internet access service through a cable provider’s facilities and to realize the benefits of a comprehensive service offering.

What they’re saying here is that cable internet should count as an “information service” because cable providers sell bundles that include not only access to the internet, but also email, web hosting, newsgroup access, DNS, and other services. Back in 2002, this was considered a reflection of how a lot of people used the internet.

Common carriers and Title II

If they hadn’t decided to treat ISPs as information services, the FCC’s other option was to classify them as “telecommunications services”, also known as common carriers. The definition of common carrier, again from an early section of 47 U.S.C. 5, reads

The term “common carrier” or “carrier” means any person engaged as a common carrier for hire, in interstate or foreign communication by wire or radio or interstate or foreign radio transmission of energy, except where reference is made to common carriers not subject to this chapter; but a person engaged in radio broadcasting shall not, insofar as such person is so engaged, be deemed a common carrier.

which is kind of circular I guess, but it makes the lawyers happy. The idea is that a common carrier provides some kind of transportation service, in this case transportation of information, which is so widely used that it’s effectively a public utility.

In exchange for the right to provide this service to so many people, a common carrier has to subject itself to a boatload of regulations laid out in subchapter II of 47 U.S.C. 5, formerly known as title II of the Communications Act.

Yes, _that_ title II. By Stephen Melkisethian, from Flickr
Yes, that title II. By Stephen Melkisethian, from Flickr
  • It has to make its service available to anyone upon “reasonable request”, for a reasonable price. (section 201)
  • It has to establish connections with other common carriers to facilitate transferring communications between them, and in fact the FCC has the authority to order these connections to be made when needed. (section 201)
  • It cannot classify or regulate communications in a way that the FCC considers unreasonable, nor engage in business practices that the FCC considers unreasonable. (section 201)
  • Specifically, it cannot make any “unreasonable discrimination” among customers, nor give any “undue or unreasonable preference or advantage”, in its handling of communication traffic. (section 202) In fact, you should read this one yourself:

    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.

    This is basically saying that common carriers have to treat all communication traffic they carry equally, within reason. This is one of the key provisions of net neutrality. It echoes the “no unreasonable discrimination” point of the 2010 Open Internet Order that I talked about earlier.

  • It has to publicly display the charges associated with the service it provides, and cannot change those charges without a 120-day public notice period. (section 203) The FCC has the authority to suspend any change in charges for up to five months, if it believes something shady is going on and wants to investigate (section 204), and can even set limits on those charges (section 205).

  • It can’t construct new cables that cross state lines, nor get rid of existing ones, without a certificate from the FCC stating that the work is necessary and serves the public interest. (section 214)
  • It can’t withdraw from an area in which it is a universal service provider without ensuring customers in that area will still have access to equivalent service from another carrier. (section 214) “Universal service” is a plan to provide communications (phone, TV, internet) to everyone in the country, which involves designating certain carriers to serve certain areas.
  • It has to make an annual financial report to the FCC. (section 219)
  • It has to make its services accessible to people with hearing or speech impairments. (section 225)
  • Officers and directors of common carriers are forbidden from receiving certain financial benefits from their companies. (section 212)
  • The FCC has the power to investigate any complaints made by customers against common carriers for violating laws or regulations (section 208) and impose penalties on the carrier (section 209).

There’s lots more. The part of subchapter II that lists the regulations has 31 sections, and covers over 50 pages in printed form. But you can tell even from the parts I’ve listed that the same principles the FCC relied on in their 2010 order are enshrined in the restriction on common carriers.

2015 Open Internet Order

After the D.C. Circuit Court invalidated (part of) the Open Internet Order in 2014, the natural next step for the FCC had a choice: accept that they had limited power to regulate ISPs, or reclassify them as common carriers, making them subject to the provisions of title (or, subchapter) II.

For a while, it really wasn’t clear which way they would go. The chairman, Tom Wheeler, was a former lobbyist for the cable and cell phone industries, and many people worried that his background and industry connections would push him into approving rules that favored the service providers, allowing them to legally accelerate, slow down, or outright block websites. And at first, that’s what it looked like: the commission voted (58:20 in the video) to propose a set of rules that would only require ISPs to provide a minimum level of service. Anything beyond that could be made faster or slower as desired.

  1. […] While maintaining this rule text, we propose to make clear that the no-blocking rule would allow individualized bargaining above a minimum level of access to a broadband provider’s subscribers—the revised rationale the court suggested would be permissible rather than per se common carriage—but, also consistent with the court’s analysis, separately subject such practices to scrutiny under the commercially reasonable practices rule (or its equivalent).

But by the final ruling the following year, after nearly four million public comments and intense pressure from major technology companies (which are internet users, generally not internet providers), the FCC had done an about face. Their ruling took the drastic step of reclassifying ISPs as common carriers.

  1. As discussed below, we find that broadband Internet access service is a “telecommunications service” and subject to sections 201, 202, and 208 (along with key enforcement provisions). As a result, commercial arrangements for the exchange of traffic with a broadband Internet access provider are within the scope of Title II […]

However, the FCC declined to subject ISPs to all the rules of title II. Section 160 of 47 U.S.C. 5 gives the Commission a right of “forbearance”, which just means they can decide on a case-by-case basis that certain rules won’t apply to certain communications services, when doing so is in the best interest of consumers and the market. In this case, they decided that a lot of the regulations about reporting charges, contracts and business transactions wouldn’t apply, and neither would many of the rules about connections between carriers or connections to homes and businesses, as well as a few other miscellaneous rules. An analysis by the law firm Kelley Drye (quite well written, by the way) provides some of the details.

In deciding which regulations to keep for ISPs-as-common-carriers, the FCC stayed true to the principles from the original 2010 order. The three bright-line rules (basically: fundamental principles) that underlie this latest ruling are laid out near the beginning of the order:

  1. 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.
  2. No Blocking. Consumers who subscribe to a retail broadband Internet access service must get what they have paid for—access to all (lawful) destinations on the Internet. […]
  3. No Throttling. The 2010 open Internet rule against blocking contained an ancillary prohibition against the degradation of lawful content, applications, services, and devices, on the ground that such degradation would be tantamount to blocking. This Order creates a separate rule to guard against degradation targeted at specific uses of a customer’s broadband connection: […]
  4. No Paid Prioritization. Paid prioritization occurs when a broadband provider accepts payment (monetary or otherwise) to manage its network in a way that benefits particular content, applications, services, or devices. To protect against “fast lanes,” this Order adopts a rule that establishes that:

    A person engaged in the provision of broadband Internet access service, insofar as such person is so engaged, shall not engage in paid prioritization. […]

2017 Restoring Internet Freedom

That brings us to the present. After President Obama left office, the FCC has lost two of its five members, and two of the remaining three were opposed to the 2015 Open Internet Order. The new chairman, Ajit Pai wants to undo the title II reclassification and restore ISPs to being considered information services, not common carriers. He considers the rules affecting common carriers — even without the ones the FCC decided not to apply — to be too strict, and is worried they will stifle investment and innovation.

Pai is also a former lawyer for Verizon, and like Tom Wheeler, many people worry that he may be unduly influenced by his industry connections.

The proposal to undo the 2015 order, titled “Restoring Internet Freedom”, is currently being considered by the FCC and is open for comments from the public until July 17. According to the text of the proposal, there are dozens of specific points on which the Commission is looking for input — just open the file and search for “we seek comment” to get a peek. In a followup post within the next few days, I’m going to analyze some of these specific points and share the comment(s) I’ll be sending to the FCC to address these issues.

A lot of comments have come in already. Several online advocacy groups organized a day of action yesterday, which resulted in over two million comments in one day, not even counting the millions of emails and phone calls to Congress. Remember, the last time the FCC took up this issue, they received four million comments and those played a significant role in their decision (paragraph 6 of the 2015 order). Please consider adding your voice! Check some of the links below for useful advice on writing a good comment, and you can also start thinking about what to write while you wait for my followup post. When you’re ready, head over to where there is a handy form you can use.

Assorted Links



General reference: