In the first draft of composition 2, I wasn't exactly sure where to start. I knew that the purpose of this assignment was to ultimately advocate for a solution; however, I found out this was harder to accomplish, in practice, in actual writing than mentally planning it. I knew that I wanted to advocate for network neutrality, as a policy and, as a result, I decided to write sort of  a thesis outlining why network neutrality was the answer. As it turns out, this seemed to be more detrimental than helpful. Coming out so adamantly narrowed the room I had to write. I was essentially forced to follow a specific path already predetermined by the thesis. I reflect upon this decision in my Reflective Introduction.

Abstract

In this paper, I address the ongoing debate of Internet regulation, specifically, within the domain of 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. I then advocate for network neutrality as the most viable solution to the issue of Internet regulation, regarding Internet service providers, by exploring the policy’s ability to protect the Internet from economic pressures and ability to provide a public right of access to the media.

First Draft

In January of 2010, Google, one of the leaders in providing Internet services and products, and Verizon, a major telecommunications company known for its mobile and broadband services, jointly issued a statement to the Federal Communications Commission. Their statement exudes the essence that the Internet is a “unique, worldwide network of networks” that has thrived mainly in “an environment of minimal regulation.” Most importantly, the two assert that self-governance is the key to the Internet’s success and should continue to be so (Verizon, and Google). Their statement addresses the FCC’s doctrine of “network neutrality” and proposes a solution to the issue of Internet regulation. As iterated by Stanley Fish, 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). In this regard, the following question is raised: “How should the ever-expanding Internet be regulated, if at all?” This momentous question, which will perhaps define the following century, has galvanized deliberation among many domains of the Internet including copyright laws, the constitutionality of digital speech as compared to its physical form, and the regulation of Internet broadband providers. With respect to the last issue, Marcia Clemmitt from CQ Researcher reports 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, signifying a division in the proper course of action; in addition, Comcast Corp. v. FCC has further exacerbated the debate by questioning network neutrality (Clemmitt). That being said, an elaboration of network neutrality is now in order.

The FCC’s network neutrality emerged from a speech given by Michael Powell in 2004, a former FCC chairman, and his concept of the “four freedoms.” Powell’s four freedoms outline his belief in basic Internet rights that consumers have a right to access lawful Internet content, use applications and services, attach personal devices, and access to their service plan (Albertson).  The network neutrality embodies these principles into an offical policy of the FCC, adopted in 2010 and exacted in 2011. As stated by the FCC, network neutraity aims to preserve the Internet as “an open platform for innovation, investment, job creation, economic growth, competition, and free expression” through three basic rules: ISPs must have transparency—they must disclose network management practices; ISPs must abide by a “no blocking” rule—they may not block legal “content, applications, services, non-harmful devices, or websites”; and ISPs must abide by reasonable discrimination—they may not discriminate among who uses their network traffic (Federal Communications Comission). Regarding the debate concerning maintaining an open Internet, network neutrality stands as the most viable policy in which Internet broadband service providers are held accountable in their operations with the digital medium. This policy adopted by the Federal Communications Commission provides a barrier against capitalistic pressures, protecting the Internet from potential ISP actions that may consequently impede on free speech. Furthermore, the policy ensures a right of public access to the media by first establishing an open Internet.

The consideration that network neutrality discourages ISPs from engaging in excessive, purely lucrative options is a major advantage. In a sense, network neutrality had also emerged from ISPs attempting to maximize profits but through a course that throttled Powell’s four freedoms. Powell’s four freedoms were initially promted by several ISPs (AT&T, SBC, and BellSouth) declaring that they sought to make “Internet calling services and popular websites pay extra” to reach their respective consumers” (Healey). Thus, entered Powell and his four freedoms in 2004; however, as history iterates, his words did not serve as law. In 2005, one year after Powell’s speech, Madison River Communication, a North Carolina telecommunications company, blocked voice over Internet Protocol (VoIP) from its end users; in response, the FCC issued a sanction demanding the telecommunications company to immediately decease its blocking and pay a fine of $15,000 (McCullagh). Unfortunately, Madison River Communication does not stand alone in violation of the FCC’s policies. In 2007, Comcast was discovered to be blocking BitTorrent’s peer to peer file sharing due to its broadband use, thereby violating the FCC’s open Internet guidelines (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. If ISPs were able to block certain applications, services, or even content at their discretion, then how can the Internet even be considered to be open and free? People may be denied access to certain ideas and speech, thus unable to evaluate the ideas in Justice Holmes’ free market of ideas. Network neutrality aside, 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, but say an Internet service provider deems the content unsuitable then, without any form of regulaton to prohibit it, broadband providers may decide to block  the website. Network neutrality enables the government to regulate ISPs through the three basic rules stated above but also consequently prohibits them from stiffling free speech.

An important consideration to note in the FCC’s ability to regulate ISP content practices revolves around the sanction issued against Comcast. After having been found of blocking BitTorrent and sanctioned, Comcast appealed to the U.S. Court of Appeals for the D.C. Circuit arguing that the FCC overexerted its authority. In Comcast Corp. v. FCC, the appeals court ruled that the FCC lacked sufficient ancillary authority to regulate Comcast’s network practices (Kang). Nevertheless, 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). An interesting adjunct notice, Cass R. Sunstein illustrates that in dealing with pollution, a requirement to disclosure has led to either political or market pressures in influencing a “reform” of sorts (Sunstein 195).Thus, in this sense, a pressure to maintain an open Internet will prevent ISPs from stiffling speech. If not by content regulation, then through disclosure requirements, network neutrality will alert others to questionable blocking by ISPs.

As an alternative to network neutrality, some propose the concept of self-governance. Cass R. Sunstein, in his book, Republic 2.0, provides several policies he believes may or may not alleviate the issue of Internet regulation, one of which is self-governance. He notes that competition between content providers may also be detrimental, as discerned through the media’s shift towards “tabloidization,” an emphasis on scandals and sensationalism (Sunstein 200). However, he also notes the optimistic outcome in which producers may come together and break this competition, without involving legislature, and suggests that perhaps such informal regulation would be beneficial to the Internet (Sunstein 201-202). The notions he speaks of us rings synchronously with Google and Verizon’s joint declaration. Again, the two Internet powerhouses iterate their belief, that self-governance will allow the Internet to continue prospering in an environment free from excessive regulation. However, notions that self-governance is the superior approach to network neutrality should be dismissed due to, once again, economic pressure from ISPs.

Self-governance, as a replacement for government regulation in the form of the FCC’s network neutrality, is not plausible due to capitalistic inclinations from ISPs. Thomas Hazlett and Joshua Wright, professors of law at the George Mason University School of Law, 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). However, it is for this very reason in which self-governance cannot replace network neutrality. Robert Cringely, a pen name of Mark Stephans and other writers of InfoWorld , reports through PBS that America’s “broadband future” was stolen. He points out that in the face of increased competition through the 1996 Telecommunications Act, broadband speeds did not rapidly increase but rather stagnated; around this time period, telephone companies had been developing technology capable of 20-40 mbps. Yet, somehow, the standard accepted became 1.5 mbps, essentially 13 times less than promised (Cringely).  Adding additional fuel to the fire, despite such “shortcomings,” telecommunication companies continued to negotiate deals with states to “deploy new technologies in exhange for incentives,” which were essentially new methods to charge consumers (Cringely). Thus, it can be discerned that without clear and rigid government regulation—net neutrality—ISPs will probably continue in their conducting of favorable deals, in which the company’s best interests are considered, not the consumer. With self-governance, the Internet is jeopardized from an economic standpoint, not to mention even considering preserving an open Internet.

Outline for the rest of the paper:

• Network Neutrality and right of access to the media
• Red Lion Broadcasting Co. v. FCC

Private benefactors have an obligation to present various perspectives on public issues

• Turner Broadcasting System vs. FCC

Concerns must-carry laws

• Reno vs. ACLU

Concerns an open Internet decentralized, digitalized public forum

• Tie in cases with Stephanie Albertson and Jerome Barron