Zack Stiegler
As communication technology evolves, it does so with an increasing swiftness that is by now taken for granted. Consider that 400 years passed between Gutenberg’s printing press (c. 1440) and Morse’s telegraph in 1837. There was then a lapse of a mere 60 years between the introduction of the telegraph and the onset of earnest experimentation in radio communication in the late nineteenth century. Although television broadcasting was still in its experimental stages, the first TV sets appeared on the commercial market simultaneously with the rise of radio’s golden age in the 1930s. The genesis of the Internet began just a few decades later in 1969, when the collaborative ARPANET project connected military and research institutions. Nearly 20 years later, Tim Berners-Lee introduced the World Wide Web, ushering in a global revolution in communication technology.
Yet as the temporal gaps between new media developments shrink, there remains a significant lag between technological development and the implementation of regulatory policy to manage those technologies. Although educational institutions, electronics firms, and hobbyists had been broadcasting for nearly 30 years, it wasn’t until 1927 that the cacophonic result of laissez-faire regulation required Congressional intervention into radio broadcasting. Congress passed comprehensive communication legislation in 1934, but it would be another 32 years before the Communications Act received a major overhaul, despite intervening technological developments.
Continuing this pattern, the Internet went relatively untouched by regulatory hands from its popularization in the 1990s until 2010. In those intervening years, judicial, legislative, and regulatory attention on the Internet focused on addressing children’s access to salacious content, digital defamation, managing intellectual property, and curbing spam messages.1 Although significant in their own right, these initiatives were narrowly tailored to specific issues raised by contemporaneous online culture. Policy discourse addressing the regulation of the Internet on a broader, structural level did not emerge until the mid-2000s. It was not until 2010 that the Federal Communications Commission (FCC) took any substantial regulatory stance on Internet communication, nearly 20 years after Berners-Lee’s World Wide Web made its debut.
Net Neutrality: An Overview
The history of the FCC’s net neutrality policy is well documented in the chapters that populate this volume. As a matter of preface, however, a brief discussion is necessary to establish a foundational understanding of the FCC’s policy and the multi-faceted debates that surround it.
Network (or “net”) neutrality is the principle that those who manage networks should provide access to all applications, content, platforms, and websites on a non-discriminatory basis.2 That is, as consumers navigate the World Wide Web, they should be able to access all legal content at the same rate of speed; Internet Service Providers (ISPs) should not have authority to prioritize any one application or website with greater speed or higher quality access than any other. A subscriber to Verizon FIOS, for example, should be able to access the Fox News webpage at the same rate of speed and quality that they can access their coworker’s political blog. Likewise, a Comcast subscriber should be able to access video content on YouTube at the same speed and quality that they access video content on Hulu (in which Comcast now has a stake, following its 2011 merger with NBC-Universal). In short, net neutrality is the fundamental design principle of the Internet that allows users to access information without discrimination or interference levied by the network operator or ISP, as has been the case up to this point. As Tina Sikka notes in this volume however, design principles are imposed by external actors such as ISPs, network managers, and federal regulators––there is nothing inherently neutral about the technological nature or structure of the Internet.
By the middle of the 2000s, ISPs pursued imposing alternate design principles onto the structure of Internet communication. Corporations such as AT&T and Comcast considered altering their network management practices in ways that would maximize their profitability, but would also change the very structure of the Internet, as well as users’ navigation of the World Wide Web. Until that point, ISPs simply provided the bandwidth and the connections between web users and online content. In 2003, AT&T CEO Ed Whitacre boldly articulated a new approach:
Now what they would like to do is use my pipes free, but I ain’t going to let them do that because we have spent this capital and we have to have a return on it. So there’s going to have to be some mechanism for these people who use these pipes to pay for the portion they’re using. Why should they be allowed to use my pipes? The Internet can’t be free in that sense, because we and the cable companies have made an investment and for a Google or Yahoo! or Vonage or anybody to expect to use these pipes [for] free is nuts!3
As ISPs considered new approaches to network management, citizen activists and media interest groups rallied to preserve net neutrality. A series of legislative attempts to enshrine net neutrality as the status quo in Internet regulation failed to gain traction in the 109th and 110th Congress, perhaps unsurprising when one considers the lobbying power of U.S. telecommunications corporations.4 In recent years, media and technology firms consistently rank among industries with the highest lobbying expenditures.5
The FCC first took up the matter of net neutrality under Chairman Kevin Martin. Although it did not directly lead to formal policy adoption, the Commission’s 2005 Internet Policy Statement initiated policy discourse about net neutrality.6 However, a 2010 decision by the United States Court of Appeals for the District of Columbia put into question the FCC’s jurisdiction over Internet and broadband services. Vacating the FCC’s 2008 censure of Comcast for undis-closed throttling (altering the speeds at which users access content online), the Court’s ruling held that the FCC did not have even ancillary authority over Internet service under the Communications Act. Noting that the Court’s decision “invalidated the prior Commission’s approach to preserving an open Internet,” the Commission held firmly that “the Court in no way disagreed with the importance of preserving a free and open Internet, nor did it close the door to other methods for achieving this important end.”7
The FCC thus continued pursuit of codifying net neutrality via regulatory policy, despite continued pressures from the telecommunications industry. Yet as is often the case, the FCC began to work closely with the very industry that it set out to regulate.8 Throughout the summer of 2010, the Commission collaborated with ISPs and content developers in closed door meetings. These discussions led to concessions to the telecommunications industry at the expense of consumers’ interests, as evidenced in the parity between the Google-Verizon proposal and the FCC’s eventual Order.
The FCC adopted its Report and Order in the Matter of Preserving the Open Internet in December 2010. Yet the Commission’s adoption of an open Internet policy did little to settle the controversy over Internet regulation. Instead, the FCC’s policy stoked already heated debates on the matter. Anti-regulatory conservatives pointed to the Comcast decision to argue that the FCC had no legitimate authority over the Internet. To this end, Verizon quickly filed suit against the FCC, challenging the agency’s authority to create and enforce Internet regulation.
Meanwhile, advocates of net neutrality criticized the FCC’s policy for not going far enough. Media reformers dubbed the policy “net neutrality lite,” and went on to denounce the FCC’s lax provisions for the blocking and discrimination of mobile Internet traffic.9 In his statement concurring with the FCC’s Order, public interest stalwart and FCC Commissioner Michael Copps acknowledged the policy’s shortcomings, and his somewhat reluctant support of the Order:
So, in my book, today’s action could—and should—have gone further. Going as far as I would have liked was not, however, in the cards. The simpler and easier course for me at that point would have been dissent—and I considered that very, very seriously. But it became ever more clear to me that without some action today, the wheels of network neutrality would grind to a screeching halt for at least the next two years.10
Across the social and political spectrum, then, few were satisfied with the Commission’s net neutrality policies as adopted. Although net neutrality may no longer be in the media spotlight as it was in 2010, the challenges to the FCC’s policy from diverse political affiliations indicate that the 2010 Order is by no means the final word on Internet regulation in the United States. As Robert McChesney argues, the early twenty-first century is a critical juncture for media policymaking, where the law and policy that we adopt now will set the course for the next several decades; net neutrality has in fact become “a defining issue for this critical juncture.”11 Assessing this critical juncture, Regulating the Web inserts itself into net neutrality discourse to provide an in-depth, multi-faceted examination of net neutrality from a diversity of academic perspectives. This volume addresses and dissects net neutrality directly, but also provides a snapshot of the policy, procedure, and impact of media regulation in the digital age.
Overview and Structure
Regulating the Web is divided into four main sections. The first of these provides analysis of the foundational principles and approaches to regulating Internet communication. Opening this section, Michael Felczak takes a historical perspective in his examination of data management initiatives by telephone carriers beginning in the 1970s. Framed through changing definitions as well as evolving design infrastructure protocols and technologies, Felczak shows how this rich history has positioned Internet operators to control the future development and workings of the Internet. In chapter 2, Danny Kimball takes a broader historical view of net neutrality as a discursive construction to underscore the symbiotic relationship that such discourse has with the policy and practice of Internet regulation in the United States.
At issue throughout net neutrality debates is the principle of transparency, a central point of contention in the Comcast case. Patrick Schmidt, Jeremy Carp, and Isabella Kulkarni argue that there is a duality in the principle of transparency: although desirable for consumers, it is easily exploited as rhetorical tokenism by the industry and its regulators. The authors chart the appeal and failures of past transparency policies, countering with new approaches aimed at ensuring ISPs’ accountability to their customers.
Another key principle throughout the history of utility and media regulation in the United States is common carriage, stipulating that qualifying providers must treat all traffic with the same quality of service. Echoing the regulation of broadcasting, telegraphy, and telephony, common carriage figured prominently in debates about net neutrality. In the lead-up to the FCC’s Order, a number of net neutrality advocates supported reclassification of broadband under Title II regulation, a means to treat broadband as a common carrier. Although the FCC abandoned this initiative, Mark Grabowski and Pallavi Guniganti engage a rich historical and comparative study of the common carriage principle to argue that it is a particularly valuable approach to Internet regulation.
Regulating the Web's second section presents institutional analyses central to net neutrality in the United States. Daniel Faltesek examines the FCC’s rule-making to parse out two competing visions of the market within the regulatory discourse. Both offer critical insights into the future of the investment, regulation, and the Internet in general, yet both also illustrate the rather tenuous position of market discourses in policymaking. Faltesek investigates how discursive formations shape our understanding of the relationship between the market and policy, while also illustrating the ways in we can productively grapple with these formations to forge alternative conceptions of the market.
From an alternate angle, Benjamin Cline interrogates the ideological framework of the FCC’s Order to establish the policy as a rhetorical artifact within a larger ideological process. Cline argues that from a rhetorical standpoint, the Order amounts to an axiological shift in our collective thinking about the Internet and its regulation, one that will shape future discourse of Internet regulation.
To date, net neutrality discourse has been fairly contentious, even controversial. As legislators and the FCC considered Internet regulation, consumers, mass media, politicians, and telecommunications firms engaged in an impassioned and wide-ranging debate on the issue. Regulating the Web's third section assesses two particular areas of these larger debates. In the year preceding the FCC’s adoption of its Open Internet Order, net neutrality received significant mainstream media attention, unusual for matters of media policy. Zack Stiegler and Dan Sprumont employ framing analysis to assess mass media’s presentation of net neutrality to the public, and how such coverage attempted to shape public perception of the issue.
In the course of the last decade, increasing numbers of citizens have become active in advocating media reform. Brian Dolber outlines three segments within the media reform movement (activist groups Free Press and the Save the Internet Coalition; the Congressional Black Caucus and the Civil Rights community; and the Communications Workers of America) to argue that reformers inadvertently helped to reinforce the dominance of industry players in shaping net neutrality policy. Noting these failings, Dolber argues for a countering of the ideological frameworks that inherently support the status quo, instead opting for a broader conception of the political economy of media.
Regulating the Web concludes with three chapters addressing the social and cultural implications of net neutrality in the United States. Approaching net neutrality through a critical theory of technology, Tina Sikka delineates the sociology, technology, and policy levels of net neutrality to determine how such an approach can help to preserve an open Internet. Ultimately, Sikka argues that this preservation can lead to increased public participation in media policymaking, as well as a democratization of Internet design.
Public participation is also the focus of Michael Daubs’ contribution to this volume. As noted earlier, one of the most glaring flaws of the FCC Order is its decidedly lax approach to regulating the mobile Internet. Daubs argues that this loophole poses a significant danger to social and political movements, which increasingly make use of mobile platforms to communicate, mobilize, and organize. In this context then, the non-neutral Internet’s impact on free speech is not mere hyperbole, but can in fact hinder citizens’ ability to publicly organize and demonstrate for social and political causes.
Finally, John Nathan Anderson looks to net neutrality as a case study of media reform in the United States. While media reform activists have been moderately successful preventing law and policy that threaten the open Internet, Anderson argues that significant work remains before we can truly claim that citizens shape media policy in any significant way. Anderson considers ways forward that may allow citizens to more actively and meaningfully engage in media policy debates, to the extent that resultant policy is shaped by public rather than commercial or political interests.
At its most basic level, the Internet deals in information exchange. As Tim Wu observes, “the flow of information defines the basic tenor of our times, the ambience in which things happen, and, ultimately, the character of society.”12 Culturally, how we structure and regulate the Internet will decide the parameters of access to and flow of information in the United States. Ultimately, Regulating the Web aims to add to the discourse of Internet regulation so that we may move forward toward an open Internet, one that values public access to this information-rich resource that is seemingly inextricable from our educational, occupational, and personal lives in the twenty-first century.
Notes
1. See for example the Communications Decency Act (initially incorporated as Title V of S. 652, the Telecommunications Act of 1996); Child Online Protection Act H.R. 3783 (1998), 105th Cong., 2d. sess.; the CAN-SPAM Act of 2003, Public Law 108–187; Digital Millennium Copyright Act of 1998, Public Law 105–304; United States v. Thomas 74 F.3d 701 6th Cir. 1996; Zeran v. American Online, Inc., 129 F.3d 327 (4th Cir. 1997); Blumenthal v. Drudge 992 F. Supp 44 (D.D.C. 1998); A&M Records v. Napster, Inc. 239 F.3d 1004 (2001); MGM Studios, Inc. v. Grokster, Ltd. 545 U.S. 913 (2005).
2. Tim Wu, “Network Neutrality FAQ,” timwu.org, http://timwu.org/network_neutrality.html (accessed August 8, 2012).
3. Ken Fisher, “SBC: Ain’t No Way VoIP Uses Mah Pipes!” Ars Technica, October 31, 2005. http://arstechnica.com/old/content/2005/10/5498.ars (accessed August 8, 2011).
4. Internet Freedom and Nondiscrimination Act of 2006, H.R. 5417, 109th Cong., 2d. sess.; Communications Opportunity, Promotion and Enhancement Act of 2006, H.R. 5252, 109th Cong., 2d. sess.; Network Neutrality Act of 2006, H.R. 5273, 109th Cong., 2d. sess.; Communications, Consumer’s Choice and Broadband Deployment Act of 2006, S 2686, 109th Cong., 2d. sess.; Internet Freedom and Nondiscrimination Act of 2006, H.R. 5417, 109th Cong., 2d. sess.; Internet Freedom Preservation Act of 2008, H.R. 5353, 110th Cong., 2d. sess.
5. In 2011, for example, the country’s three largest ISPs (AT&T, Comcast, and Verizon) collectively spent $55,315,000 in lobbying expenditures. See the Center for Responsive Politics’ Lobbying Database at http://www.opensecrets.org/lobby/index.php.
6. Federal Communications Commission, Policy Statement in the Matter of Inquiry Concerning High Speed Access to the Internet Over Cable and Other Facilities, 2005 http://www.publicknowledge.org/pdf/FCC-05-151A1.pdf (accessed January 20, 2011).
7. Federal Communications Commission, “FCC Statement on Comcast v. FCC Decision,” April 6, 2010, hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-297355A1.pdf (accessed August 18, 2012).
8. On industry’s “capture” of regulatory agencies see David Hilliard and Michael Keith, The Quieted Voice: The Rise and Demise of Localism in Radio (Carbondale: Southern Illinois University Press, 2005), and Robert Britt Horwitz, The Irony of Regulatory Reform: The Deregulation of American Telecommunications (New York: Oxford University Press, 1989).
9. Matthew Lasar. “It’s here: FCC adopts net neutrality (lite),” Ars Technica, December 21, 2010, http://arstechnica.com/tech-policy/news/2010/12/its-here-fcc-adopts-net-neutrality-lite.ars (accessed August 8 2011); Adam Holofcener, “Net Neutrality Besieged by Comcast Corp. v. FCC. The Past, Present and Future Plight of an Open Internet,” Journal of Business and Technology Law., no. 2 (2012): 403–424.
10. Michael J. Copps. “Concurring Statement of Michael J. Copps re: Preserving the Open Internet, GN Docket No. 09-191, Broadband Industry Practices, WC Docket No. 07-52,” December 21, 2010. http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-10-201A3.pdf (accessed August 18, 2012).
11. Robert McChesney, Communication Revolution: Critical Junctures and the Future of Media (New York: The New Press, 2007), 181.
12. Tim Wu, The Master Switch: The Rise and Fall of Information Empires (New York: Alfred A. Knopf, 2010), 12.