Net Neutrality on Center Stage
By Marjorie Heins
(May 30, 2006) - Washington DC-watchers last week saw a remarkable change of the weather on a profoundly important issue - "network neutrality." Energized by one of the most diverse coalitions in our recent political history, the House Judiciary Committee approved a bill that would bar the telephone and cable companies that control broadband Internet access from discriminating in the provision of services.
Allowing the few companies that now dominate broadband to discriminate would end the Internet as we know it. If the companies that own the pipes - the high-speed cable and DSL lines that are increasingly essential to online communication - can block sites that they dislike, or that don't pay them for fast connections to our computer screens - then the Internet will be transformed from a dynamic, interactive forum into just another medium delivering shopping and entertainment to consumers.
Nonprofit educational, religious, and advocacy groups of every political and cultural variety, unable to pay for the fast lane, would be relegated to the bumpy dirt road under this system - if they showed up on our screens at all. Information about health, the environment, politics - you name it - would be delivered at slower speeds while commercial sites would zoom into view.
Yet despite these high stakes for culture and democracy, new telecom legislation was headed for passage without serious net neutrality protection until just a few weeks ago. On April 26, the House Energy & Commerce Committee had rejected a strong neutrality mandate proposed by Congressmen Rick Boucher and Ed Markey.
Thus, the "Communications Opportunity, Promotion and Enhancement," or "COPE," Act (watch out for those seductively misleading titles), was sent to the House floor with only the weakest of net neutrality language, and essentially no enforcement mechanism. A columnist from the Blue Meme blogsite opined:
In addition to those 750,000-plus signatures, savetheinternet.com rapidly became a coalition of nearly 800 wildly diverse organizations, ranging from Consumers Union and Common Cause to the Christian Coalition and the Parents' Television Council. Rock stars like R.E.M. and Moby began to lobby Congress; and last week, "National Day of Outrage" rallies were held in major cities.
Yet it wasn't only the public outcry that accounted for the Judiciary Committee vote: as several observers pointed out, there was also the matter of turf competition between the Energy & Commerce Committee and the Judiciary Committee.
The Judiciary Committee bill, authored by Reps. James Sensenbrenner and John Conyers, makes net discrimination an antitrust violation, which gives enforcement authority to the Department of Justice as well as private litigants. Other pending bills, if they mention net neutrality at all, give the FCC (the Federal Communications Commission) the power to enforce, or in the case of COPE, to respond to complaints. The FCC administrative process is notoriously slow, and vulnerable to political pressures. Cases can take many years to get to court - if they ever do.
There are currently six bills pending - three in the Senate and three in the House - that address net neutrality. The Sensenbrenner-Conyers bill has a long way to go, and the danger of a total loss, or of a compromise that allows some form of two-tiered Internet service, is still very real.
Why is Net Discrimination Suddenly a Threat?
How did we even get to the point where a few corporate access providers have the power to change the Internet so drastically? This medium, which exploded on the communications scene not much more than a decade ago, used to offer a multitude of online access choices. But advancing technology combined with appallingly bad decisions by the FCC and the Supreme Court have brought us to the current crossroads.
Telephone companies have long been "common carriers" under U.S. law. That is, they supply the wires that allow us to communicate, but they can't control what is said, censor what they don't like, speed things up for customers who are able to pay more, or refuse to allow other providers to use their lines for a reasonable fee. This last requirement proved crucial to the early Internet, when there were lots of competitors vying for our dial-up business.
Thus, you could sign on with mindspring, compuserve, or other names that are now distant memories, and your local phone company had to allow them to rent space on its dial-up wires.
Then along came cable broadband, which was great for speeding things up on what had quickly become a very crowded Internet, and for handling large files, including video and audio streams. The cable companies, although supplying essentially the same service as dial-up - just faster - argued that they should not be treated as "telecommunications services" (that is, common carriers) for purposes of their new business of selling high-speed Internet access. Instead, they said - and the FCC agreed - that they should be viewed as "information services" for purposes of connectivity, just as they are for purposes of the actual content they deliver to your cable TV screen.
The implications of this decision - the censorship power it would potentially give to cable companies supplying broadband service - was apparent. Seeking to avoid this unappetizing result, a federal court of appeals in 2003 disagreed with the FCC and said that for purposes of providing the pipes, cable companies are no different from other telecommunications providers. They must be treated as common carriers.
Alas, the Supreme Court reversed this decision in 2005 (the case is called National Cable & Telecommunications Association v. Brand X Internet Services), and ruled that the appeals court should have deferred to the FCC's judgment that cable companies providing broadband access are "information," and not "telecommunications," services. Barely two months later, the agency gave phone companies, now also in the business of providing high-speed, or DSL Internet access, a similar exemption from common carrier rules.
Today, if you want high-speed Internet service - which is increasingly essential for business, for education, and for old-fashioned web surfing - your choices are generally two: either cable broadband or DSL through the phone company. If you live in a rural area, you are lucky to have even one, usually high-priced, broadband provider.
This "duopoly" - or in some areas, monopoly - situation set the stage for the net neutrality fight. In a competitive market, Internet service providers would probably not even consider proposing a two-tiered (or three-, or four-tiered) Internet - few consumers would sign up. But with the combination of high-speed technology plus capital that only cable and phone companies have, and the power to deprive competitors of access to that technology, these communications giants are now in a position to control the Internet.
It didn't take long for the phone companies to make their intentions known. Just a few weeks after the FCC relieved them of common carrier requirements for DSL, the chairman of then-SBC Communications told Business Week magazine that "there's going to have to be some mechanism" to get companies like Google and Yahoo to pay for Internet traffic to their sites. BellSouth and Verizon executives soon made similar statements.
Focusing on big sites like Google that are heftily supported by advertising is smart public relations for the telecoms, but it didn't take long for web democracy advocates to point out that subscribers are already footing the bill for Internet access, and that millions if not billions of nonprofit sites will not be able to pay the broadband providers for favored treatment.
The telecom industry's other favorite rhetorical phrase - "don't regulate the Internet" - is only slightly less misleading. Since all aspects of our economy are governed by laws, regulations, and government policies, it is not a question of whether to "regulate the Internet," but how. The FCC's decision to allow phone companies to monopolize DSL wires is one type of regulation. A decision by Congress that would require net neutrality, thereby restoring the common carrier principle, is another type of regulation - and one far more likely to secure the democratic potential of the Internet for generations to come.
Update, June 8, 2006: the House of Representatives voted down net neutrality legislation; see http://savetheinternet.com/blog/ for a full report, and continuing updates.
For a December 20, 2007 commentary from the Seattle Times, describing three recent troublesome incidents of censorship by ISPs, see http://www.freepress.net/news/29176
For background on the Brand X case and the breakdown of the common carrier principle, see "Two Defeats and a Silver Lining."
For background on media democracy generally, including net neutrality, see the Media Democracy Fact Sheets.