Net Neutrality Delayed, Net Neutrality Denied

The Internet, grown beyond adolescence now, is still filled with the energy of youth and the power to continually reshape our lives. In its heady youth, it brought the world to our screens and cell phones—instantaneous global communications and access to the bounties of knowledge just a click or a tap away. Yet we have just barely scratched the surface of what the Internet is capable of achieving as it matures. No aspect of our lives will go untouched by its opportunity-creating potential—from job formation and growing our economy to healthcare delivery, better schools, energy independence, and environmental protection. The Internet’s past is barely prologue for what is yet to be.

But wait! The home the adolescent grew up in is not the house into which the young adult is moving. Its new domicile is populated with gatekeepers and powerful interests intent on exchanging the open environment that nurtured so much innovation and so many consumer benefits for a constricted environment of walled gardens and monopoly toll booths. The Internet, raised for the most part in an atmosphere of openness and creativity, becomes each day more vulnerable to the control of rent-seeking landlords and hugely powerful sentinels.

No communications technology in history has been immune from the realities of the marketplace. The dynamic of enterprise, and often its great benefit, is the urge to grow and achieve market power. Telephony, movies, radio, TV, and cable each traveled this road, as did so many non-communications industries. It’s the engine of progress, not to be excised but rather controlled for the common good.

In the telecommunications of the previous generation, the country came to the realization— belatedly and only after much damage had been inflicted upon competitors and consumers alike —that at least some minimal public oversight was needed to stem the tendency to market control and monopoly power. Ma Bell had grown too dominant and, at length, government broke it up. Telecommunications statutes were then enacted that were intended to provide competitive opportunity and consumer protections. Phone providers were required to protect the rights of privacy, to provide ubiquitous and up-to-date services at reasonable prices, and to safeguard public safety.

By the time I joined the Federal Communications Commission in 2001, however, the tide had turned again. The Bush Administration had come to town, and with it a new majority at the FCC that was beholden to the telecom and cable giants. That FCC devoted itself to making life easier for these companies by approving their mergers and acquisitions and also by freeing them from consumer-friendly and competition-encouraging regulatory oversight.

All this was occurring as the companies were moving to control the fast-growing broadband market. Many observers had assumed that the wires, fibers and cables of broadband would have the same kinds of consumer and competitive safeguards that we were accustomed to on our plain old telephones. They assumed wrongly. Indeed, the new FCC majority quickly decided that broadband wasn’t even telecommunications! It was an “information service” and therefore no longer under that part of the Telecom Law that protected consumers and competitors. Broadband was placed instead in a never-never land of regulatory limbo called Title I of the Telecom Act where nothing was guaranteed and every protection would have to be fought for and re-won. It was an exercise in semantic sleight of hand that empowered the big players, eviscerated consumer protection, and virtually eliminated competition in the deployment of Twenty-first century communications. No other country in the world permitted such a tortuous debate over labels and terminology to retard its deployment of broadband, which helps explain why so many of those nations presently rank higher than the United States in terms of broadband penetration. While we debated, others built. In 2001, our country was in the broadband vanguard; by 2013 it’s an “also-ran” at Number 15.

The Commission’s decision to redefine broadband went to the courts, and different courts arrived at different decisions. So the battle went to the Supremes, who decided to accord regulatory deference to the agency (a long tradition) and therefore upheld the majority. Many of us observed at the time that classifying broadband as telecommunications, which it really is, might just as easily have won court approval based on deference. With that, we could have avoided the current judicial battle over “network neutrality” in a case that was argued in federal court just last week.

“Network neutrality” is a not very illustrative term for an open Internet, or Internet freedom. The core idea is that consumers are free to access the lawful content of their choice, run applications, attach devices, and enjoy the benefits of transparency and non-discrimination. Broadband providers are therefore prohibited from favoring their own businesses over others. That’s not just to encourage competitors; it’s also because the free flow of information is especially important to a healthy democracy, which depends upon citizens being able to access a variety of information providers so we can make up our own minds.

In 2009, following the election of Barack Obama, a new FCC came to town. Its majority embraced the concept of Internet freedom but was divided on how to guarantee it. After heavy and expensive lobbying by the big players, the Commission decided that it could have the best of both worlds—an open Internet without a fight to the finish with powerful corporate interests—by writing net neutrality rules, but placing them largely under the infinitely porous Title I and hoping the courts would give the FCC deference to proceed.

This was the setting for last week’s hearing in the D. C. Circuit Court of Appeals over Verizon’s suit contesting the Commission’s rules. Never shy, Verizon’s lawyers added a claim that not only does the FCC lack the power to enforce any Internet freedom rules, but that the company has a First Amendment right to block content on its system because it should enjoy freedom of speech—a ridiculous claim made more so because in other venues the company has argued it is merely a conduit and not a speaker. (Never let it be said that foolish consistency underpins the company’s creative legal strategies.)

Lost in all the legal briefs is any concern for the speech rights of consumers. The Internet is an increasingly important resource for voters to inform themselves, activists to organize themselves, and everyday citizens to make themselves heard. Allowing Verizon or AT&T or Comcast to censor citizen speech is a direct threat to our democracy. As Senator Al Franken sagely forecast in 2010, “net neutrality is the First Amendment issue of our time.”

There’s more. If gatekeepers can move selected content onto more expensive tiers, where consumers would have to purchase access to blocks of sites as though they were cable channels, nothing could stop the ISPs from making access to news and information a luxury good. Without strong open Internet protections, we will find ourselves in a world wherein only the well-heeled have access to the reporting upon which democracy depends.

How the court will decide nobody knows. The judges could uphold, strike down, or do a little of each. A likely outcome is that clear rules of the road to guarantee an open Internet will still be lacking. If the rules are upheld—which I hope they are—they will nevertheless require substantive clarification about such things as paid prioritization and non-discrimination which were left murky in the pending rules. Additionally, open Internet safeguards need to be applied to wireless broadband which was largely exempted from the FCC’s handiwork.

Many of the court’s observers called the hearing a “mixed bag”. A mixed bag outcome is not the right setting for a growing Internet. What is needed is clarity. What is lacking is clarity. Having no rules, or muddled rules, or never-ending legal battles while the Internet evolves, is a surefire recipe for mischief, evermore gate-keeping, higher consumer prices, less competition, and monopoly/duopoly powers in charge of our online future. What a tragic denial of the Internet’s awesome potential this would be. Yet . . . it seems to be the road we’re on.

At the heart of the debate, as legal scholar and telecom expert Susan Crawford has wisely observed, is this question: “Does the U.S. government have any role in ensuring ubiquitous, open, world-class, interconnected, reasonably priced Internet access?” We would be well-advised to get to a clear and unequivocal answer to this question now and then get on with making it happen. Earlier generations of Americans managed to find ways to manage the nation’s critical infrastructure so as to serve the common good. Why would we do any less?