Net Neutrality: A History

Today, news went out that the FCC is drafting a Notice of Proposed Rulemaking to reinstate its Open Internet rules…just in modified form. The new, modified rules would, in short, propose

  1. That all ISPs must transparently disclose to their subscribers and users all relevant information as to the policies that govern their network;
  2. That no legal content may be blocked; and
  3. That ISPs may not act in a commercially unreasonable manner to harm the Internet, including favoring the traffic from an affiliated entity.

Since FCC Chairman Tom Wheeler announced the proposed rulemaking, a lot of articles have been written expressing concern about these new principles, and many in the tech industry have seen them as a very dire sign for the future of the internet.

However, let’s be honest: net neutrality is a hard concept to grasp, and while we should be concerned about these rules, it’s not easy to understand exactly why, or what changed, or what’s so dangerous about the new situation. So let’s take a look at how we got here and where we’re going.

The regulation of the internet

First: I’m going to skip over a whole lot of history, and I’m going to simplify a lot here. Let’s just say that there’s a lot of history, and it predates the internet, and it’s mostly AT&T’s fault, and it’s actually way more interesting than you’d think: if you’d like to learn more, I recommend Tim Wu’s excellent book The Master Switch, and Cybertelecom.org‘s fantastic Federal Internet Law & Policy resource.

The Telecommunications Act of 1996 governs the internet. The Telecommunications Act is broken down into a few sections, but the important ones for our purposes are Title I and Title II. Title I regulates “information services” (like email and web pages: the stuff that runs over the tubes) and Title II regulates “telecommunications services.” So let’s look at what the differences between those are.

Chart of FCC regulations

Chart of FCC regulations

We’ll come back to all that, I promise, but it’s nice to have a chart, because it gets way more confusing, but I want to stress one more thing first: Title II regulation is much more stringent than Title I, and allows the FCC to impose many more rules than Title I. However, the FCC has a really important power called forbearance: it’s allowed to choose which rules it wants to impose and which rules it doesn’t. It can just ignore any provision that it doesn’t think is in the public interest.

So back to 1996, when nobody really knew what “the internet” was going to be. Congress knew it was going to be important, but it also knew the internet was going to change a lot, so it decided not to specify where the internet fit: whether it was supposed to be regulated under Title I or Title II. It let the FCC decide, depending on where technology and competition needed it to be, and also let the FCC change its mind if a change was necessary.

The advent of Title I regulation

The FCC did a lot of work on this, and I’m not going to go into the whole history (but I swear it’s pretty interesting). Ultimately, in 2002, it decided that because internet access providers did not offer access as a stand-alone product (at the time, you got your email, your web page hosting, and your news group access through your ISP, and ISPs were also the only organizations handling DNS services), internet access was not purely “transmission of information without change,” so it had to be an information service. In other words, because internet access providers did not only provide access, they had to be regulated under Title I.

The FCC also chose Title I because Title I had the least regulations and would allow the internet to grow and flourish unrestricted, and all the ISPs were very nice and said they’d be good, and said “please.” This was important to the FCC at the time, because 2002 — the height of the Bush years — was a period of deregulation in a lot of industries, and a firm belief that if left alone, the market would take care of itself. That worked out well across the board, right?

The results of Title I, and the rise of Net Neutrality

No, deregulation didn’t work out well across the board, and it didn’t work out well on the internet. Left alone, the big players in the free market  ate up all the small players pretty quickly. While, in 2002, the FCC had relied on new companies entering the market to create competition, and expected new innovations such as broadband over powerline, WiMAX, and satellite broadband to spur competition, these failed to flourish. Today, 96% of the United States has at most two options for broadband internet service (meaning that there may be two options in their area, but the two options may not actually compete with one another or be accessible by the same customers).

To its credit, the FCC quickly realized that there was a problem. Because it wanted to use as light a regulatory hand as possible on the thriving internet, it started by proposing some guidelines for ISP conduct in 2005. Those guidelines would be the first Net Neutrality / Open Internet rules. But the problem was,  they were just guidelines, really: no one had any real reason to follow them.

Cut to the chase: what are the rules?

  • Consumers are entitled to access the lawful Internet content of their choice
  • Consumers are entitled to run applications and use services of their choice, subject to the needs of law enforcement
  • Consumers are entitled to connect their choice of legal devices that do not harm the network
  • Consumers are entitled to competition among network providers, application and service providers, and content providers.
  • A provider of broadband Internet access service must treat lawful content, applications, and services in a nondiscriminatory manner
  • A provider of broadband Internet access service must disclose such information concerning network management and other practices as is reasonably required for users and content, application, and service providers to enjoy the protections specified in this rulemaking

Let slip the lawyers of war

So in  2009, the FCC decided to turn those four principles into six actual rules instead of guidelines, adding two new ones: a nondiscrimination rule and a transparency rule (see above). This became the “Open Internet” rulemaking, so if you hear people talk about “Open Internet” and you’re like, but wait, I thought we were talking about net neutrality…it’s the same thing, but god forbid the government use the same words everyone else is using.

Around this same time, Comcast got caught throttling peer-to-peer traffic. The FCC ruled that Comcast’s throttling was in violation of its net neutrality principles, and was unlawful. Comcast sued the FCC, and in 2010, the FCC lost. It was a fairly simple ruling: the DC Circuit Court told the FCC, look, you can’t regulate internet access because you classified it as an “information service,” as Title I, not a “telecommunications service.” You did it wrong, used the wrong magic words, and Title I doesn’t give you the kind of regulatory power you need. But you totally have the power to reclassify it, and then you can regulate it all you want, because Title II does exactly what you want it to.

Go on, scroll back up to the chart. I’ll be here when you get back.

The FCC reclassifies internet access under Title II and we all live happily ever a…oh, wait

As it had been before, the FCC was very skittish about imposing Title II regulation on the internet…and apparently it had totally forgotten that it was allowed to ignore the provisions it didn’t want to impose. It met with Comcast, AT&T, and Verizon, who of course begged them not to reclassify, promised to self-regulate responsibly, and probably even said “please” a few times.

So the FCC, who knew it was powerless, finished writing its Open Internet rules in 2011. But everybody else also knew that the FCC was powerless (the court had already said the rules weren’t going to work), so as soon as the rules were released, Verizon sued. The court case dragged on for three years, and then in February the DC Circuit told the FCC, look, you can’t regulate internet access because you classified it as an “information service,” not a “telecommunications service.” You used the wrong magic words, and Title I doesn’t give you the kind of regulatory power you need. But you totally have the power to reclassify it, and then you can regulate it all you want, because Title II does exactly what you want it to.

So now we’re here.

And now the FCC is, again, refusing to reclassify. We’ve been here before. The FCC is trying one more time to revive its Open Internet rules, and this time, they’re letting the service providers charge extra for access and use, as long as it’s not “commercially unreasonable,” and as long as they’re transparent about it. This time the FCC isn’t as toothless as before — those are things that the court said they could regulate without reclassifying — but that’s it.

And that transparency would be awesome, if you had any choice about your online access provider (which you don’t, because the FCC’s deregulation of the internet destroyed competition in the internet industry, which necessitated the net neutrality rules in the first place). It’s not a solution, it’s just the FCC’s attempt to strip down “net neutrality” until the Comcasts of the world are so unaffected by it that they stop suing to crush it. This ham-fisted compromise will harm small business owners, even further wreck competition and innovation, raise barriers to entry for new start-ups, and drain money from users both individual and corporate.

But I bet the ISPs said “please” again.

Okay, fine, what do I do about it?

  • Contact the FCC Commissioners. The FCC has just established an email address specifically for public feedback about the Open Internet rulemaking: openinternet@fcc.gov. You can also submit comments officially through the FCC’s comment procedure, under proceeding #14-28.
  • Call your Senators and Representatives and ask them to urge the FCC to reclassify broadband access under Title II. This is not something Congress can do — it’s the FCC’s responsibility — so don’t ask them to do it, but if Congresspeople start pounding on the FCC’s door, it’s likely to get a response.
  • Go to FreePress’s Save The Internet site and show your support.