The third draft builds upon the second, making elaborations upon topics perhaps not addressed enough. One such example is the abstract. The previous abstract did not explain minor details seen in the following questions: Will the debate of network neutrality will focused on scholars or politicians? What are the repercussions or major significance of this debate? How will this affect the Internet as we know it now? This sort of elaboration is also present within the body of the paper, further explaining small details such as the credentials behind Michael Powell, the significance of his four freedoms, or what these freedoms actually were. In addition to these elaborations is a significant organizational change. Previously, the three Supreme Court cases were discussed after the advocacy. In this iteration, the order was reversed. The cases are discussed before the advocacy, thus offering the readers a sense, an insinuation, of the advocacy instead of abruptly forcing it.

Abstract

In this paper, I address the ongoing debate of Internet regulation, at least 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 before advocating for network neutrality, including the potential alternatives. On this note, a special mention will be paid 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.

Third 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. Stanley Fish elaborates the issue in a broad sense, mainly addressing speech on the Internet; he asserts 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). Moreover, in Republic 2.0, Cass Sunstein asserts that the issue is not whether to regulate the Internet, but rather how (Sunstein 11).In this regard, the following question is raised: “How should the ever-expanding Internet be regulated?” 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 service providers (ISPs). 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, insinuating a division along the lines of “what exactly is proper course of action?” (Clemmitt). Furthermore, Comcast Corp. v. FCC has further exacerbated the debate by questioning network neutrality, specifically by evaluating whether or not the FCC actually has the authority to enforce such a policy (Clemmitt). Before examining the potential solutions to regulating ISPs, including network neutrality, an elaboration of the policy and its history is required.

The FCC’s network neutrality originated 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  four basic Internet rights that Powell believes are fundamental rights that all 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).  Network neutrality embodies these principles into an offical policy of the FCC, adopted in 2010 and exacted in 2011. Nonetheless, it is important to note that the FCC has advocated the ideas entailed in network neutrality long before the policy’s offical appearance into the regulation debate. 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 to access the new Internet service provider’s servers, thereby exuding notions of discriminatory business practices. 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). 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, 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. Network neutrality represents one potential solution to this discriminatory practice and a method to maintain an open Internet; however, the policy, per se, is not without its flaws.

Regarding the debate on net neutrality, there are several alternative options presented. As mentioned in the beginning of this paper, Google and Verizon have promoted the concept of self-governance, an idea that, as Cass Sunstein notes, 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.

An important consideration in determining net neutrality’s legitimacy revolves around Comcast Corp. v. FCC, a case where the Federal Communications Commission’s authority is examined. 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. 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 court has yet to respond.

There are almost always two sides, perhaps even more, to an argument—network  neutrality is no exception. 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). Others, like Thomas Hazlett and Joshua Wright address network neutrality from an economic analysis. 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).

Having explored the context of network neutrality and the various arguments surrounding the debate, 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, which will all soon be outlined. In this regard, 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 issue of legal precedents, the four court rulings are: Associated Press v. U.S., Red Lion Broadcasting v. FCC, and Reno v. ACLU.

In 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:

It would be strange indeed however if the grave concern for freedom of the press which prompted adoption of the First Amendment should be read as a command that the government was without power to protect that freedom. The First Amendment, far from providing an argument against application of the Sherman Act, here provides powerful reasons to the contrary. That Amendment rests on the assumption that the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public, that a free press is a condition of a free society. Surely a command that the government itself shall not impede the free flow of ideas does not afford non-governmental combinations a refuge if they impose restraints upon that constitutionally guaranteed freedom. Freedom to publish means freedom for all and not for some. Freedom to publish is guaranteed by the Constitution, but freedom to combine to keep others from publishing is not. Freedom of the press from governmental interference under the First Amendment does not sanction repression of that freedom by private interests. (Associated Press v. U.S.)

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). The case insinuates the present day scenario of ISPs potentially banding together to hinder certain applications, services, or Internet content.

In Red Lion Broadcasting v. FCC, the FCC’s fairness doctrine was examined. Implemented in 1949, 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). 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. Both of these FCC policies force radio/television and ISPs to ensure content from many opposing perspectives, while also enhancing free speech.

The final case, Reno v. ACLU, is rather different from the previous two; while the other two cases provide insight upon specifics (e.g. ISPs blocking content or the reasonable discrimination in net neutrality), Reno provides the Court’s interpretation of the Internet. In 1996, the Rehnquist Court dealt with 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 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—rings synonymously with Justice Steven’s thoughts.

In Republic 2.0, before Sunstein concludes his book, he points out 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, 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.”