Implications and Probable Futures
“It means that the major providers of high-speed Internet access in the US, who have systematically divided markets and tacitly agreed mostly not to compete with one another, can treat high-speed Internet access like a cable TV service,” believes telecom expert Susan Crawford with the Telecommunications Equality Project at the Roosevelt Institute. “They can be gatekeepers, charge content providers (any business) for the privilege of reaching us, the subscribers; and, of course, charge us. A lot. For lousy service compared to, say, Stockholm or Seoul.”
Calling it an “absolute necessity that there be government oversight of broadband networks,” Wheeler promises that “the FCC also is not going to abandon its responsibility to oversee that broadband networks operate in the public interest. It is not going to ignore the historic reality that when a new network transitions to become an economic force that economic incentives begin to affect the public interest. This means that we will not disregard the possibility that exercises of economic power or of ideological preference by dominant network firms will diminish the value of the Internet to some or all segments of our society.”
Wheeler notes that the Net Neutrality debate has revolved around two major issues: “First, that network operators will take measures, mostly for economic reasons but perhaps also for ideological reasons, that will cut off or diminish the value of the Internet. Second, that the FCC will intrude on the activities of network operators in ways that will damage them economically with injury to them and to their ability to offer more and improved service to the public.” However, Wheeler promises that “my intention is to employ any necessary means among the wide variety of them given to the FCC by the Congress to sustain our jurisdiction. That the jurisdiction exists is not debatable. What path we take to assure it will be a function of circumstance, but whether we secure it should not be a source of doubt.”
Economist Hal Singer sees a middle-ground solution for the issue, by “the FCC making case-by-case decisions or ‘adjudication’ in administrative law. In a nutshell, the FCC would permit special-delivery arrangements between broadband providers and websites, but the agency would police abuses of that newfound discretion through a complaint process. Adjudication would ensure consumer protections on the Internet, and it would bolster the incentives of both websites and broadband providers to invest at the edges and the core of the network, respectively, generating even more benefits to consumers.”
In 2005, law professor Tim Wu published a seminal paper titled “Network Neutrality, Broadband Discrimination” in which he writes that “there remains much work to better define what the concepts of network neutrality and discrimination would fully entail as a regulatory matter, or even as a regulatory threat.” In response to this recent FCC decision, Wu notes that “Tom Wheeler, the new chairman of the FCC, now has the unfortunate task of dealing with strategic errors made by his predecessor. Restoring the agency’s long-standing authority over broadband telecommunications is much simpler than it appears. Wheeler needs only to reaffirm that, for Internet firms that want to send information to customers, broadband is a ‘telecommunications service,’ meaning that the F.C.C. has the authority to regulate it. He has both the time and the votes to do so.”
A Bumpy and Sometimes Strange Road to the Future
Today’s internet is a highly federated system with thousands of carriers, untold content providers, and billions of users across the globe. However, this isn’t the first time that an emerging communication technology has faced peril. As a recent article in Smithsonian magazine points out, “Similar debates have occurred in the past, beginning with the telegraph. Lines from the Pacific Telegraph Act of 1860, for example, could almost be used to describe the internet, at least up until this week’s hearing: ‘Messages received from any individual, company, or corporation, or from any telegraph lines connecting with this line at either of its termini, shall be impartially transmitted in the order of their reception, excepting that the dispatches of the government shall have priority.’” Clearly, Net Neutrality is achievable—but given problems with privacy and political interference, we can expect an uphill battle.
John Simpson, Consumer Watchdog’s privacy project director, explains that “Net Neutrality is essential for the internet as we know it. However, the U.S. Court of Appeals is not as bad as some would believe. Most importantly, it recognizes that the FCC has the right to regulate broadband providers. Where it got into trouble was that at an earlier time it classified broadband providers as ‘information service providers’ rather than as ‘telecommunications providers.’ Telecommunications providers are common carriers and have an obligation to treat all comers equally. That’s what the FCC’s Open Internet regulations would have required of all broadband providers, that they treat all comers equally. The rule in effect requires an ISP, the broadband provider, to act like a common carrier.
“The FCC can’t do that because they have classified [broadband providers] as ‘information service providers,’ and they must not be treated as if they were common carrier telecommunications providers. Therefore, the court vacated the rules,” Simpson continues. “But importantly they ruled that the FCC does have authority to regulate ISPs. The important thing to understand is that how broadband providers are classified is up to the FCC. They have called them information service providers, but they can change the classification to telecommunications providers. If they do that, then they could treat them as common carriers and implement Net Neutrality rules.”
In his 2014 State of the Union address, President Barack Obama discussed the need to bridge the great digital divide and move the country forward, stating: “After 5 years of grit and determined effort, the United States is better-positioned for the 21st century than any other nation on Earth.” The economy is stronger; however, many challenges with the internet continue—including privacy and surveillance. As University of Michigan law professor Shayana Kadidal says: “All of us who work in this field were staggered by the scope of the surveillance operations revealed by Snowden. But at the same time we’ve all been uniformly encouraged by Snowden’s reassurance that ‘encryption works.’ Notwithstanding its $12 billion budget and its unlimited ambitions, the NSA [National Security Agency] hasn’t been able to change the laws of math and physics. The real challenge now is to get ordinary people to adopt the open-source, slightly-less-convenient alternatives to commercial electronic communication packages that can guarantee their privacy against the government.”
Interestingly, just 2 years ago, various internet sites—including Wikipedia and Google—worked to have a 1-day internet blackout to show opposition to SOPA (Stop Online Piracy Act), which was seen as a major attack on internet freedom. Hundreds of other websites participated. The strikers celebrated their success at that time, noting: “Tens of millions of people who make the internet what it is joined together to defend their freedoms. The network defended itself. Whatever you call it, we changed the politics of interfering with the internet forever—there’s no going back.” However, the internet remains a relative newbie in telecommunications and still faces growing pains as it works to move to higher efficiencies and global coverage. Keeping the internet vital, state-of-the-art, open, and—as much as possible—free is an essential requisite for success in the coming years.