Click here to download the Word document, which contains the essay as it was originally intended to be—a multi-modal composition

The challenge set by Composition 2 concerned becoming a strong advocate. In the process of doing so, the assignment galvanized you to focus your topic while simultaneous broadening your research, a truly arduous task. For my composition two, I decided to continue forward with the ideas set down by my first Composition—specifically, exploring the concept of regulation upon the Internet. In my preliminary round of precursory research, I stumbled upon an interesting concept, network neutrality. Below is my policy analysis of sorts and advocacy—my Composition 2, Opening the Net: Network Neutrality.

Abstract

                        In this paper, I address the ongoing debate of Internet regulation, primarily among scholars. The debate, depending on the outcome, may ultimately alter the very nature of the Internet as a free and open, digital medium that is available to all. The focus of said regulation shall be primarily concentrated within the domain of regulating Internet service providers and network neutrality—a policy adopted by the Federal Communications Committee that outlines three basic principles to maintain an open Internet: transparency, no blocking, and no unreasonable discrimination. In addition, I will address the potential alternatives to regulating Internet service providers before advocating for network neutrality. On this note, a special mention will be paid in tribute to Google and Verizon’s “dual Internet,” which may ultimately create a public, regulated Internet and a commercialized Internet, governed by telecommunication companies—potentially changing the current Internet service provider-consumer pricing system. In my advocacy, I explore the legal precedents behind network neutrality and employ said precedents as the primary factor in choosing an optimal solution.

Opening the Net: Network Neutrality

In September 2008, John Dozier, a lawyer specializing in cyber law, filed a lawsuit to have Ronald Riley’s site, www.cybertriallawyer-sucks.com, taken down. Dozier claimed that the website infringed upon his firm’s trademark because an embedded link with the firm’s name led to cease-and-desist letters sent to Riley, and not the firm’s site (Ardia). Furthermore, Dozier exerted pressure upon Global Net Access, the data center of Riley’s Internet service provider (ISP), A Small Orange, threatening them with litigation if the site was not shut down (Ardia). Consequently, Global Net Access ordered A Small Orange to shut down Riley’s site. Unfortunately, the story does not end here. Riley moved his site to pSek LLC, whom Dozier also threatened with “contributory infringement” if the ISP continued to host Riley’s website. And, once again, Riley’s site was met with Internet downtime (Ardia). Eventually, Riley found an ISP willing to host his site despite Dozier’s threats; however, Riley’s experiences with ISPs denote an important elucidation regarding ISPs. Riley’s website is an extension of free speech, specifically, his freedom to criticize. Because no ISP, at least initially, continued to host the website, it is elucidated that Internet service providers are private entities and thus are not bound to protect the guarantees laid out by the First Amendment. This elucidation insinuates a current issue with the digital medium: If ISPs—the very entitles hosting Internet content—are not required to protect free speech, then who should be responsible in protecting free speech upon the Internet?

Before addressing the issue of protecting free speech upon the Internet, it is important to understand what exactly constitutes free speech. In the 1964 Supreme Court case, New York Times v. Sullivan, the Supreme Court created absolute political speech (as long as it was made without malice), ensuring “uninhibited, robust, and wide-open” speech (New York Times v. Sullivan). Since that decision, evaluation of free speech stepped away from evaluating whether speech incited “bad behavior” to whether the speech was expressive—whether it contributed to society (Fish). However, perhaps this requirement is too lax. Stanley Fish notes that the Supreme Court’s upholding of the “post-New York Times v. Sullivan” mantra has facilitated the dissemination of a large spectrum of speech upon the Internet—some of which may not be beneficial to society, yet alone detrimental (Fish). It is less of a hyperbole today to say that one can find just about anything upon the Internet, including government manifestos or even explicit videos depicting abstract sexual fetishes, speech that hold little social benefit but could incite great social discord. In this respect, some argue for a circumvention of speech upon the Internet, for regulation of the Internet. AsCass Sunstein notes in Republic 2.0, the issue is not whether to regulate the Internet, but rather how (Sunstein 11).However, with regards to the previously iterated question, the answer is not clear. Should the Internet be regulated by the government? Or, rather, should the Internet be left alone in the prospects of self-regulation?

The current answer lies within the Federal Communications Commission’s policy, network neutrality. The policy stands to ensure an “open Internet” through regulation of Internet service providers. In this case, an “open” Internet corresponds to the concept that all data on the Internet should be treated equally and if ISPs were to infringe upon this equality, repercussions are in order (Ammori). However, the issue of regulating Internet service providers remains a contentious issue, with scholars and congressmen deliberating whether network neutrality is the proper resolution. Marcia Clemmitt acknowledges in her CQ Researcher report, “Internet Regulation,” that the current debate has been mainly convoluted; in 2011, a joint congressional resolution attempted to order the FCC from refraining from regulating the Internet until Congress decides the proper course of action. Making matters worse, the congressional proposal did not pass through the Senate, insinuating a division along the lines of “what exactly is proper course of action for Internet regulation?” (Clemmitt). Furthermore, in the 2010 case, Comcast Corp. v. FCC, the debate has beenhas further exacerbated through the questioning of network neutrality, specifically by evaluating whether or not the FCC actually has the authority to enforce this policy (Clemmitt). As it previously stood, the debate mainly concerned whether network neutrality represented the best solution to regulate Internet service providers and ultimately the Internet. However, in the face of Comcast, the debate must now involve network neutrality’s legal legitimacy—whether case law even permits the FCC to enforce network neutrality (Ammori).  Before examining the debate regarding the regulation of ISPs, including the potential solutions, an elaboration of the current answer, network neutrality, and its history is required.

The FCC’s network neutrality originated from a speech given by Michael Powell in 2004, a former FCC chairman appointed by President Bush and current president of the National Cable & Telecommunications Association (NCTA), and his concept of the “four freedoms.” Powell’s four freedoms outline four basic Internet rights that Powell believes are fundamental rights that all Internet consumers reserve.  His four feedoms are that consumers have a right to access lawful Internet content, use applications and services, attach personal devices, and lastly access their service plan (Bagwell 78-81). Powell originally issued his speech and the four freedoms as a guideline for the industry; however, as will later be discerned, few entities took the paper as concrete law (Preserving Internet Freedom). Network neutrality embodies these principles into an offical policy of the FCC, adopted in 2010 and exacted in 2011. Nonetheless, two important notes must be made before progressing further. Firstly, the FCC has advocated the ideas entailed in network neutrality long before the policy’s offical appearance into the regulation debate (Bagwell 73-73). And secondly, the following policy is not an extension of the First Amendment—it is not law; network neutrality is a regulatory policy established by the FCC that aims to maintain an open Internet. That being said, as stated by the FCC, network neutrality aims to preserve the Internet as “an open platform for innovation, investment, job creation, economic growth, competition, and free expression” through three basic rules: one, ISPs must have transparency—they must disclose network management practices; two, ISPs must abide by a “no blocking” rule—they may not block legal “content, applications, services, non-harmful devices, or websites”; and three, ISPs must abide by reasonable discrimination—they may not discriminate among who uses their network traffic (Federal Communications Comission). It is clearly discernable that network neutrality embodies the spirit of Powell’s four freedoms; net neturality employs regulatory rules that aim to maintain the consumer rights Powell enumerated. The “no blocking” and reasonable discrimination clauses allow the consumer to freely access lawful applications and Internet content of their choosing. While an understanding of the conceptual basis—Powell’s four freedoms—of net neutrality is certainly important, understanding the problem that  net neutrality aims to correct, is no less crucial.

Net neutrality’s coming into fruition, as a policy, was primarily motivated by ISPs blocking content for economic gain. Alarms were first raised in 2005 as AT&T, SBC, and BellSouth were undergoing a merger; Ed Whitacre, the then SBC Chief Executive, commented to Business Week, “[W]e and the cable companies have made an investment, and for a Google or Yahoo or Vonage or anybody to expect to use these pipes free is nuts” (Healey). As Jon Healey of the Los Angeles Times notes, Whitacre essentially called for Google, Yahoo, and Vonage to pay twice—once to access the ISP’s servers and second to access the consumers—thereby exuding notions of discriminatory business practices (Healey). Further kindling the fire was Madison River Communication, a North Carolina telecommunications company. In 2005, the same year as Whitacre’s statement, Madison River Comm. blocked voice over Internet Protocol (VoIP) from its end users due to extensive broadband usage (McCullagh). Furthermore, Madison River Communication’s actions essentialy disregarded Powell’s “industry guidelines,” the four freedoms, by choosing to impede upon the consumer’s right to applications and services. Two years later, analogous to Madison River Comm., Comcast was discovered to be blocking BitTorrent’s peer to peer file transfer for the same reason, broadband usage (Kang). Madison River Comm and Comcast demonstrate that both broadband providers, and perhaps even others, are willing to forgo their consumers’ access to certain content on the Internet in the prospect of
maxizing their profits, specifically limiting applications or content that would slow down its broadband network. 

From an economic standpoint, if left unregulated, such practice may cause Whitacre’s  statement to become a reality in which content providers pay a premium for their content to reach consumers quickly. The reverse is also a possiblity; ISPs may charge consumers extra to reach premium content, decided by the telecommunications company. Maybe it is YouTube or perhaps ABC’s news network that the company deems to be a premium—the choice is theirs. Economics aside, the issue with this blocking practice is that it may also ultimately impede free speech. Consider the following hypothetical situation: if a person decided to express his ideas legally through the Internet, perhaps through a blog on a personal website, similar to Riley’s website, but say an Internet service provider deems the content unsuitable or too draining on its broadband network then, without any form of regulaton, formal or informal, to prohibit it, broadband providers may decide to block the website, thereby impeding freedom of speech. On this note, Hannibal Travis of the Santa Clara Law Review, heralds network neutrality as a policy that protects the First Amendment—something that had been seemingly “abandoned” since the deregulation of the Internet from the Telecommunications Act of 1996 (Travis). Thus, network neutrality represents one potential solution to discriminatory blocking and a method to maintain an open Internet, at least for Travis.

However, not all scholars share such an optimistic outlook as Hannibal Travis. Thomas Hazlett and Joshua Wright address network neutrality from an economic analysis and reach a different conclusion. The two professors of law at George Mason University argue that the policy is not feasible by first examining the Internet before the onset of the regulation debate. Through their examination, the two elucidate that the Internet has never been neutral—from an economic viewpoint, ISPs have historically “sold prime real estate on their start-up pages,” such groups include Google/AOL, Rogers Cable/ Yahoo!, and Disney/Comcast (Hazlett and Wright). This sort of “walled garden” of content for ISPs, they argue, has long spurred innovation among content providers; however, because network neutrality treats this “walled garden” as hostile to innovators, Hazlett and Wright argue that the FCC policy suppresses entrepreneurship rather than protects it (Hazlett and Wright). Thus, to the two professors, network neutrality represents not a solution to maintaining an open Internet but forceful regulation that ultimately opposes the Internet’s capitalistic nature of “walled gardens.” However, an economic analysis is not the only approach that yields opposition to network neutrality; by examining a specific case, one may also reach another opposing standpoint on the issue.

As mentioned previously, the 2008 case,Comcast Corp. v. FCC, has raised several questions regarding the Federal Communications Commission’s authority to actually enforce network neutrality. After Comcast was discovered to be throttling BitTorrent’s broadband usage in 2008, the FCC sanctioned Comcast, urging the company to cease its blocking; however, no fine was imposed. Comcast appealed the sanction to the U.S. Court of Appeals for the D.C.The Comcast decision has additionally garnered interesting analysis upon the ruling, some of which bold more optimistically for network neutrality. Amanda Leese of the Northwestern University School of Law, in her analysis of the specific provisions cited in the Comcast case, discerns that the repercussions to net neutrality are not as detrimental as it would seem at a precursory glance. She asserts that the Comcast decision may or may not limit the FCC’s ability to enforce network neutrality’s content clauses but, more importantly, the case rather enforces the transparency protection clause (Leese). This reinforcing is due to the transparency protection being distinguishable to the blocking and nondiscrimination policies, in the sense that the provisions cited are different; the transparency clause relies on provisions that are completely separate from those of blocking and nondiscrimination (Leese). In addition, because the appeals court did not express disagreement with the FCC’s ancillary authority (for the transparency clause), Leese equivocates this as the court essentially verifying the transparency clause.

Circuit (Kang). In 2010, the court ruled that the FCC lacks the ancillary authority, as defined in the Telecommunications Act of 1934, to impose its authority over ISPs’ network practices (Kang). Cecilia Kang of The Washington Post reports that the case has casted a looming doubt over the FCC’s ability to regulate broadband providers as emphasized by Rebecca Argobast, head of research at Stifel Nicolaus, a brokering and investment firm. Argobast comments, “[The] ruling is destabilizing, as it could effective free broadband providers from FCC regulation over broadband” (Kang). Thus, as iterated by Comcast Corp. v. FCC, perhaps the FCC has overstepped its legal bounds in its policy, network neutrality. In fact, since Comcast Corp v. FCC, others have taken up in Comcast’s footsteps; in 2010,Verizon challenged the FCC by taking its “reasonable discrimination” rule to court. Using the same pretenses as Comcast, Verizon argues that the FCC “fails to identify any statutory authority” for its policy (Wyatt). The U.S. Court of Appeals for the D.C. Circuit has yet to respond.

Regarding the debate on net neutrality, there are several alternative options presented. Google and Verizon have promoted the concept of self-governance, an idea that, as Cass Sunstein notes in Republic 2.0, has been capable of bringing forth informal regulation without involving legislation; an especially important case is the television industry’s voluntary rating system (Sunstein 201). Thus, Google and Verizon’s proposal certainly does ring optimistically in the face of the digital medium; however, their approach is somewhat different and certainly special. In 2010, Google and Verizon proposed a “two lane Internet,” where content providers pay extra to deliver bandwidth-intensive content through the fast lane. These services must be “distinguishable from traditional broadband Internet access services and are not designed to circumvent the rules” (Buskirk). According to their proposal, the FCC would have unquestionable ability to regulate the open Internet. Unfortunately, their proposal appears to raise more questions than answers in the net neutrality debate. Eliot Buskirkof Wired, an American magazine that deals with emerging technology with respect to the economy, politics, and culture, asks several important questions himself. First, he asks whether this proposal will lead to a situation analogous to cable and satellite television, where content found on free, public progamming is made available without “killing” the free alternative. And secondly, he asks whether the proposal would be more analogous to network television, which essentially destroyed local station production (Buskirk). In essence, Google and Verizon’s solution represents a special branch of self-governance, where a new domain is created for ISPs and the old retained for regulation. In regards to net neutrality, traditional self-governance would seem rather to be a senario in which the FCC embraces a “hands-off” approach, leaving the Internet service providers to engage in the mentioned “walled garden” practices.

Having explored the context of network neutrality and the various arguments surrounding the debate, perhaps an examination of court cases, regarding past regulation of media broadcasting, will prove beneficial to understanding the FCC’s standpoint on Internet regulation. In the 1945 Supreme Court case, Associated Press v. U.S., the central theme consisted of print networks as content controllers. Associated Press was a cooperaive association of 1200 newspapers (Associated Press v. U.S.). More importantly, Associated Press prohibited its members from disseminating news to non-members, as well as allowing its members to “block competitors from entry into the AP” (Bagwell 120-121). The United States filed an injuction against AP, asserting that they had violated the Sherman Anti-Trust Act as they had essentially made “an attempt to monopolize a part of [the commerce of news among the states]” (Associated Press v. U.S.). The case would have been a simple antitrust lawsuit had it not been for AP to take a first amendment stand, arguing that the Sherman Act, as applied to its “by-laws”—rules or laws laid out by an association that were designed to allow the organization to regulate itself—impeded AP’s freedom of speech. In 1945, the case was decided in the Supreme Court, with Justice Hugo Black delivering the Court’s opinion. He mentions that “the freedom to publish is guaranteed” but the “freedom to combine and keep others from publishing is not.” Dana D. Bagwell interprets his words rather succinctly; she states that Black essentially asserted the government’s right to protect the First Amendment—which, in this case, is equivalent to saying that print media may not band together “to hinder the widespread flow of information” (Bagwell 121-122). While ISPs are not explicitly banding together as AP did, as more and more ISPs engage in the practice of blocking, Internet service providers, as a collective, are essentially keeping others from “publishing,” regardless of whether they intentionally block in unison or not. In this regard, Associated Press v. U.S. insinuates the present day scenario of ISPs potentially banding together to hinder certain applications, services, or Internet content and reinforces the FCC’s no blocking provision.

Whereas Associated Press involved the no blocking provision, the following case deals with network neutrality’s nondiscrimination clause.In the 1968 Red Lion Broadcasting v. FCC, the FCC’s fairness doctrine was examined. Implemented in 1949 by the FCC, the fairness doctrine required radio and television broadcasters to present both sides to the debate upon public issues, an attempt to ensure informed deliberation; however, the rule relevant to the case consisted of allowing someone, who was personally attacked, time to respond (Red Lion Broadcasting v. FCC). Red Lion took the fairness doctrine to court arguing that the policy impeded upon the broadcaster’s free speech, as it did not allow the broadcaster to freely choose which content to broadcast (Red Lion Broadcasting v. FCC). The case pitted Red Lion Broadcasting against the FCC in 1968 with the Warren Court presiding; Red Lion argued that the fairness doctrine impeded the First Amendment, specifically regarding these time frames for personal attacks. However, the Court ruled unanimously in the FCC’s favor. The Court expressed that the fairness doctrine “enhanced rather than infringed” free speech as it “insured a balanced and open discussion of contested issues” (Red Lion Broadcasting v. FCC). Through the Court’s justification of the fairness doctrine, Red Lion Broadcasting v. FCC rather insinuates the analogous “reasonable discrimination” in network neutrality. The reasonable discrimination, in conjunction with the no blocking rule, is designed to allow Internet consumers access to a plethora of information and content, as ISPs are not allowed to hinder the dissemination of particular content without good reason. Similarly, the fairness doctrine ensures citizens access various perspectives of public issues, as radio and television broadcasters were not allowed to block one side and only broadcast the other.

Associated Press and Red Lion deal with the specific provisions of network neutrality; however, the final case, Reno v. ACLU, addresses the concept of regulating the Internet, as a whole. In 1996, the Rehnquist Court dealt with the question of whether the Communications Decency Act violated the First and Fifth Amendments as the act was broad and vague in defining “indecent” material. The Court ruled unanimously in favor of the ACLU and the First Amendment; in other words, the court ruled that the First Amendment was violated because the Decency Act enacted “content-based blanket restrictions” —the Act did not define “indecent” material, show that adults would not be impacted, or demonstrate that the “offensive” material had no inherent social value (Reno v. ACLU). More important to the matter at hand, net neutrality, is that Reno represents the Court’s first direct involvement with Internet regulation (Bagwell 137). Justice Stevens delivers the Court opinion, emphasizing the Court’s belief that the Internet is “a unique and wholly new medium of worldwide communication” and is “located in no particular geographical location but available to anyone, anywhere in the world, with access to the Internet” (Reno v. ACLU). Additionally, Stevens illustrates how no single organization can control membership and how no “single central” point from a Website or service may be blocked.  Thus, it can now be argued that network neutrality’s aim—to prevent any single ISP from controlling the Internet’s membership and discriminately “censor” websites or services at their discretion, through blocking or throttling outgoing bandwidth —rings synonymously with Justice Steven’s thoughts.

Through the three cases presented—the 1945 Associated Press v. U.S., the 1968 Red Lion Broadcasting v. FCC, and the 1996 Reno v. ACLU, I now express my support in favor of the FCC’s regulatory policy. The most crucial factor in my advocacy concerns the fact that the FCC’s network neutrality has a legal basis—it meets several precedents previously outlined by case law and interpretations, as outlined in the three cases mentioned above. In Associated Press v. U.S., a foundation was built for network neutrality’s no blocking rule. In Red Lion Broadcasting v. FCC, the Court established the fairness doctrine’s legitimacy, thereby also providing bedrock for the nondiscrimination rule. Finally, in Reno v. ACLU, the Court established its opinion of the Internet as an open and free medium, available to all. On this same note of analyzing legal precedents, the two other solutions, self-governance and the Google-Verizon dual Internet, fall short. Self-governance relies too greatly on antitrust litigation to keep the “walled gardens” in check; even so, free speech may not be ensured as described in the hypothetical situation I  previously enlisted. As for the dual Internet proposed, the concept is too ambitious to accurately predict the consequences. For one, who can guarantee that content providers will not disportionately focus on the fast, premium Internet? Moreover, this method essentially bars regulation, from the FCC at least, concerning the new, private version of the Internet.

Returning to the debate of the broader debate of Internet regulation, in the final pages of his book Republic 2.0, Sunstein enumerates several policies he believes may or may not work, as applied to regulating the Internet in a broader sense. Sunstein elaborates upon the potential in “must-carry” policies (where both sides of a public issue must be addressed), self-regulation, and disclosure of relevant conduct by producers of communications (Sunstein 192). In this last regard, Sunstein addresses how disclosure has been largely helpful as applied to radio and television broadcasters as especially noted in the voluntary TV rating system, TV-Y to TV-MA but he also expresses how the policy is impossible to apply on websites (Sunstein 198-199). However, Sunstein does not address disclosure as applied to Internet service providers. Internet service providers, if left unregulated, have the capacity to ultimately decide which content is able to be disseminated to consumers through the practice of “blocking.” Through this blocking, free speech may inevitably be impeded upon. The policy of network neutrality appears to be the most optimal solution at the moment, containing rules that are largely reminiscent of the must-carry rule and disclosure Sunstein mentions. Network neutrality forces ISPs to consider a broad range of content through its “reasonable discrimination” rule. Network neutrality forces ISPs to obey disclosure, making sure they reveal network management practices. Deriving from case precedents in the past, network neutrality will, hopefully, maintain an open internet for the future as Justice Stevens iterated—one  that is “available to everyone, anywhere in the world, with access to the Internet.”