February 17, 2018

Class Warfare over an Uncommon Carrier | Peer to Peer Review

Barbara FisterPresident Obama surprised many people when he added his comments to the four million submitted to the Federal Communications Commission (FCC) about whether and how the government should set rules that will shape the future of the Internet. What was surprising was that he came out with a short but quite pointed outline of what many of us feel would be exactly the right moves to take. Predictably, the debate has become partisan, though the issue itself is not. Citizens of all political persuasions have strong feelings about the value of keeping the Internet open. How exactly to do that is what’s tricky. Because simplistic metaphors, such as asking whether Internet access is more like cable TV or like electricity, as a recent New York Times article put it, don’t really work, I thought I’d try to untangle what exactly is under debate. Because while I have opinions, I wasn’t entirely clear on the details of how the FCC works and what reclassifying Internet provider services as common carriers really means.

The American Library Association (ALA) is in favor of net neutrality, the awkwardly named idea that all information packets should receive equal treatment when they travel across the Internet. A website run by a small nonprofit, your grandmother, or your public library shouldn’t have to pay Internet service providers (ISPs) an extra fee to get the content they create and share online delivered to whoever wants to see it. Without regulation, advocates worry that providers could choose what we can access to favor business partners. ISPs argue that regulation is bad for innovation, but the evidence is not on their side. Under light regulation, few Americans have much choice when it comes to broadband access, prices are higher than in other developed countries, and speeds are slower. There’s no reason to believe that giving broadband providers more power would be good for anyone other than broadband providers.

The FCC is a bipartisan independent federal agency directed by five commissioners who are nominated by the president and confirmed by the Senate and has struggled to fit the Internet as it has evolved into its existing regulatory framework. (A time line from the Public Knowledge project, which supports net neutrality, does a great job of explaining the various legal issues.) When the 1996 Telecommunications Act was passed, most Americans had dial-up Internet access, so the FCC thought it made sense to treat Internet access the way it treats telephone service. Under Title II of the Act, telephone services are considered common carriers and are obliged to comply with consumer-friendly regulations, including nondiscrimination. But in 2002, after companies began offering Internet access bundled with cable television, the FCC reclassified ISPs as information services under Title I, which made it difficult for the FCC to impose any regulations. When ISPs wanted to be able to give priority service to content providers who pay for faster delivery (or wanted to prioritize their own content), the FCC tried to impose rules to preserve an open Internet and were sued twice, once by Comcast and again by Verizon. In both cases, the FCC failed to establish the legal footing to regulate an open Internet under Title I.

Incidentally, Michael Powell, the FCC chair who oversaw the classification of the Internet as an information service in 2002, is now a lobbyist for the trade association that opposes net neutrality. The current FCC chair, Tom Wheeler, used to be a cable industry lobbyist. This revolving door makes FCC commissioners very familiar with the complexities of the issue but also uncomfortably cozy with the industry players who are fighting against net neutrality with all the campaign donations and lawsuits they can.

What President Obama suggested—that the FCC reclassify the Internet as a common carrier under Title II but use its regulatory authority with discretion—would give the FCC the ability to impose rules that would hold up in court. It’s likely that the telecom and cable industries would still fight restrictions every step of the way. But it would be harder for the Comcasts and Verizons to win.

In many ways, the trouble we’re having is because the Internet as we know it today is hard to squeeze into categories established in 1996. But it would be difficult and probably disastrous to try to pass a new law that takes into account the nature of the net, given that the current U.S. Congress doesn’t seem inclined to pass many laws these days and those that it does pass are often shaped more by private interests than by those of the public. Just look at who has been favored when it comes to copyright law in recent decades. But as with copyright law, it’s something librarians need to take seriously. If we believe that nondiscriminatory access to information is important, net neutrality is our fight.

Barbara Fister About Barbara Fister

Barbara Fister is a librarian at Gustavus Adolphus College, St. Peter, MN, a contributor to ACRLog, and an author of crime fiction. Her latest mystery, Through the Cracks (see review), was published in 2010 by Minotaur Books.
Photo by Debora Miller

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  1. Joel Christopher says:

    (1) What is the current situation? Can or have ISP’s already been prioritizing content providers? (2) is there a reason ISPs, who have invested billions of their own money in this infrastructure, should not be able to decide how their own infrastructure is used? (3) aren’t you afraid that The FCC guys will take bribes from the ISPs? (4) aren’t you afraid that the FCC themselves or the government through them Will be able to censor the Internet or block free-speech in different ways and two different degrees? (5)

    • To respond numerically, 1) Yes, there have been cases where a large corporate provider has degraded content in order to get payment from the provider (Netflix). 2) The public purse has funded a lot of the development of the Internet – it wasn’t created by and isn’t entirely supported by ISPs, which sometimes are last-mile providers. That, and the fact that there is so little competition for a vital service, means the public has an interest in making sure people have reasonable and non-discriminatory access. 3) I don’t think the FCC takes bribes, though they tend to be very cozy with the big telecom and cable companies (as I mention in this piece – the current chair was a lobbyist, the current head of the industry’s lobby was the FCC chair). Do congressfolk take bribes? Well, the money they take in is legal, but it certainly stinks and has corrupted what we like to think of as a democracy. 4.) I’m less afraid of the government blocking free speech than corporations because the state, not private interests, is subject to the first amendment. And while monied interests buy a lot of influence, we have a bit more of a chance of influencing the government than the corporations that do everything they can to control it.