Neutrality is a philosophy where vested interest, or favoring of sides, is absent from a situation. As one of the original guiding principles of the Internet, net neutrality gives people all around the globe a platform for sharing and appreciating ideas with respect for their fellow person. However, would that be the case if your Internet service provider(ISP) had a say in how you use the Internet?
On September 9, 2013 the United States Court of Appeals for the District of Columbia(DC) Circuit began hearing the case of Verizon vs. the Federal Communications Commission(FCC). This case was then decided upon in favor of Verizon on January 14, 2014. This is commonly referred to now as the ruling against Net Neutrality.
To have a true understanding of the present, there needs to be some knowledge of its past. So instead of digging right into this case, let’s take a step back and look at the events prior to this case that play apart in where we are now.
Comcast Corp. vs FCC
In 2007, several subscribers to Comcast’s high speed Internet service discovered Comcast was interfering with their use of peer-to-peer applications. To further escalate this situation, two advocacy agencies, Free Press and Public Knowledge, and a number of public interest groups filed a complaint with the FCC.
In these complaints, the premise was that Comcast’s actions here violated the FCC’s Internet Policy Statement, commonly referred to as the FCC Open Internet Order of 2010. The complaints were based on inclusion of consumers’ entitlement to access any lawful Internet content of their choice:
adopt[ed] the . . . principles” that “consumers are entitled to access the lawful Internet content of their choice . . . [and] to run applications and use services of their choice.
In Comcast’s defense, it stated that its interaction was an attempt to manage scarce network capacity.
After some time, filled with public commentary, 2008 saw the FCC responding by affirming its jurisdiction over Comcast’s network management and that their method of network activity discrimination was unjust:
significantly impeded consumers’ ability to access the content and use the applications of their choice,” id. at 13,054, ¶ 44, and that because Comcast “ha[d] several available options it could use to manage network traffic without discriminating” against peer-to-peer communications, id. at 13,057, ¶ 49, its method of bandwidth management “contravene[d] . . . federal policy.
In addition, the FCC concluded that there were several more acceptable alternatives to network management. Comcast would eventually comply with the FCC, but only to later challenge their grounds on three claims, targeting the FCC’s granted authority from the Communications Act of 1934. These claims being:
- First, it contends that the Commission has failed to justify exercising jurisdiction over its network management practices
- Second, it argues that the Commission’s adjudicatory action was procedurally flawed because it circumvented the rule-making requirements of the Administrative Procedure Act and violated the notice requirements of the Due Process Clause.
- Finally, it asserts that parts of the Order are so poorly reasoned as to be arbitrary and capricious.
Comcast Corp. would eventually take the FCC to court on January 8, 2010 to dispute their ruling on these three claims. The case was then decided on April 6th of the year in favor of Comcast. This ruling vacated the FCC’s 2008 ruling on the matter, and maintained that the FCC does not have authority over Comcast in how it manages its Internet services.
In closing of the case, the courts gave their reasoning on the grounds that the FCC did not provide enough information to assert its ancillary authority over the matter.
“Congress gave the [Commission] broad and adaptable jurisdiction so that it can keep pace with rapidly evolving communications technologies.” Resp’t’s Br. 19. It is also true that “[t]he Internet is such a technology,” id., indeed, “arguably the most important innovation in communications in a generation,” id. at 30.
Yet notwithstanding the “difficult regulatory problem of rapid technological change” posed by the communications industry, “the allowance of wide latitude in the exercise of delegated powers is not the equivalent of untrammeled freedom to regulate activities over which the statute fails to confer . . . Commission authority.
More information on the case and its preceding can be found in its court brief.
Comparing How Verizon and Comcast Corp. Won
Due to the high volume of quality articles available on the Verizon case at the moment, I won’t be spending more time going over it for the millionth time. However, I will drill down for you the reasoning for the ruling in both cases.
In the Comcast Corp. vs FCC case, it was the interpretation of the Communication Act of 1934 where the case’s decision rested. The preceding judge found that this act did not give the FCC the ancillary authority, the right to regulate a jurisdiction; however, an agency sees fit, to regulate over Internet service providers’ networks.
There ancillary authority was unproven on the grounds of American Library Association vs. FCC. This proceeding states,
“A commission may exercise ancillary authority only if “(1) the Commission’s general jurisdictional granted under Title I [of the Communications Act] covers the regulated subject and (2) the regulations are reasonably ancillary to the Commission’s effective performance of its statutorily mandated responsibilities.”
In the Verizon case, the main act under review here was the Telecommunications Act of 1996. After around four months of deliberation, the ruling favored Verizon on the grounds that the act in question failed to explicitly classify broadband providers as telecommunications services instead of their regular classification as information services.
So in short, the FCC lost these pivotal cases because of a lack established jurisdiction authority and failure to identify broadband providers as telecommunication services instead of information services.
What is Net Neutrality
After all that back story on how companies are starting to attack Net Neutrality, by now, you’re wondering what exactly defines this philosophy. In conjunction with that, the bigger question would be: if its gone, how will things change for me?
Net Neutrality is the principle that Internet service providers and governments should treat all data on the Internet equally. This principle removes the option for discrimination of services based on user, content, site, platform, application, type of attached equipment, and modes of communication.
This way of being on the Internet is now in jeopardy because the verdicts in both the Verizon and Comcast Corp. cases was critical in defining regulation limitations on ISPs (Internet Service Providers) .
How Things Could Change
In the near future, you can definitely expect many more ISPs taking the FCC to court, but that most definitely won’t be all. Here are a few examples of how things could change:
- Companies start paying ISPs a premium to not count bandwidth used in conjunction with their web services
- Increase in discriminatory network management tactics from ISP
- Higher priced service packages being offered to consumers for limiting discriminatory activities from ISP providers
- Set of overcharge fees for using network technologies that are viewed as bandwidth drainers
- Increase in screening and recording of Internet activity that is readily available to the government at anytime
Wait, the government gains something here? I thought the FCC was an independent agency of the U.S. government, something’s missing here. That is right, there is something not adding up with that!
SOPA, PIPA, and CISPA
Back in 2012, SOPA and PIPA took the world by storm, and had every big player on the Internet doing their part to help prevent these laws from being passed. Due to the high outcry from the Internet, the House and Congress decided to halt progress to give more time to work on them.
I’ve already written a well explained article on the matter, so I won’t detail it here. However, what if I told you that one of the companies supporting SOPA and PIPA was Comcast. Funny how a company supporting acts like these two would also take to court the FCC regarding how it regulates its network management discrimination policies. My apologies, I meant network management protocols and not discrimination policies. Slip of the keyboard.
CISPA on the other hand is lesser known than the other two, but its still important. CISPA stands for Cyber Intelligence Sharing and Protection Act, and was first introduced to the U.S. House of Representatives in 2011. CISPA was passed in the House in 2012 and 2013; it has been recently stalled and not voted on in the Senate in its recent trip there.
A brief definition of this law is that, if passed, it would allow for the sharing of Internet traffic information between the U.S. government and technology and manufacturing companies. Key supporters of this include: AT&T, IBM, Intel, Oracle Corporation, Symantec, TechNet(includes executives from Google, Yahoo, Microsoft, etc.) and Verizon.
What You Can Do!
After all that reading, the first thing you should be feeling like doing is reading some more! Despite the positive outcome of the stop SOPA and PIPA campaign a couple of years ago, there was one real problem I noticed. NOBODY WAS REALLY INFORMED!
Everybody was ready to spread the word, but probably no more than 10% at best actually knew what they were talking about. In addition, this lack of information lead to many misleading blog articles, stating that SOPA and PIPA were defeated. Well, they weren’t! They were sent into a state of further review, meaning they easily will come back in another form again.
So if this article got you interested in saving Net Neutrality, then first read the two core court cases setting up its future attacks.
Also, go back and get informed about SOPA and PIPA with my original piece on it. If nothing is concrete enough for you there, then, there are plenty of resources to be found regardless.
After getting some concrete facts on the matter for yourself, take your fury over to Fight for the Future to help them and 85 other organizations to aid in the fight. Why should we all live in a world where the one sole place meant to be free for the citizens of the world to openly collaborate become as discriminated as the world we all complain about.
Today you also will notice there is popup on 1stWebDesigner today, because today whole Internet is protesting against mass surveillance! We support this protest and invite you to join in! We are enjoying freedom on Internet and now is the time to help protect it! You can read more about this protest here and check out site, who is organising this event. - Note from Dainis Graveris, founder of 1WD