Net Neutrality: The Debate Rages On
by Michael Baumann
Ever since the issue of Net Neutrality first appeared on the national political stage in summer 2006, the ensuing debate has ranged from spirited to downright nasty. But one thing has remained constant: No real progress has been made one way or another.
However, after a mid-January call for comments from the Federal Communications Commission (FCC), all of that could change.
At stake is the ability of broadband providers to selectively speed up certain content on their networks. Telecom companies framed the idea as creating an express lane on the information superhighway, while opponents decried it as an abuse of epic proportions and the end of the free and open internet that we now know.
The issue stalled in Congress. During the past 4 years, Rep. Ed Markey, D-Mass., personally introduced three separate pieces of legislation on the issue, two of which were defeated and the third, the Internet Freedom Preservation Act of 2009, is still in committee. As a result, the FCC is taking matters into its own hands. The FCC is planning to convert its set of “principles” on Net Neutrality into real, enforceable regulations.
New Faces Influence Debate
With Markey’s push for Net Neutrality seemingly stalled again, supporters of Net Neutrality are encouraged by the FCC’s newfound involvement.
“I think the indications are very good,” says Craig Aaron, senior program director of Free Press, the media advocacy group behind Savetheinternet.com. “The new chairman of the FCC made a speech at the Brookings Institute making it very clear his intention to support Net Neutrality.”
That new chairman is Julius Genachowski, who was appointed 6 months ago by President Obama. Genachowski now openly supports the creation and enforcement of Net Neutrality rules in the FCC, if Net Neutrality laws could not be passed in Congress. Net Neutrality supporters have also gained more friends in high places, including the president.
“This was his No. 1 tech priority in the campaign,” says Eric London, a spokesman for the Open Internet Coalition. “He’s repeatedly raised it as president. His leadership on this issue is extremely important. We also appreciate the fact that we have leaders like Chairman [John D. (Jay)] Rockefeller in the Senate and Chairman [Henry A.] Waxman in the commerce committee who are also supportive of the issue. It’s an entire team effort, and the president’s leadership has been critical.”
Genachowski and the other two Obama appointees on the five-person FCC board are expected to vote in favor of Net Neutrality regulations when the issue arises later this spring. This would be the first time ever that there would be concrete rules on the books for Net Neutrality.
Legal Opposition to the FCC
But not everyone with a stake in the Net Neutrality debate is on board with this prospect. Kyle McSlarrow, the president and CEO of the National Cable & Telecommunications Association (NCTA), made a speech before the Media Institute in December in which he said, “Net neutrality rules have the potential to restrict protected speech in myriad ways—and not just the speech of Internet Service Providers.”
The NCTA represents cable and telecommunications interests and counts Comcast and Time Warner as two companies that stand to lose a great deal if the Net Neutrality regulation passes.
Proponents and opponents of Net Neutrality have used the First Amendment as a defense, but McSlarrow’s take on the issue concerns commercial speech, which is not often cited as a particular concern of the First Amendment.
“The First Amendment’s free speech principles apply to businesses as well as ordinary Joes like you and me, although there are some limits,” says George Pike, assistant professor of law at the University of Pittsburgh School of Law and author of IT’s Legal Issues column [George Pike also discusses the Net Neutrality issue in his column this month on page 15. —Ed.]. “Free speech applies to actions as well as words, and in a nutshell, the ISPs are arguing that they have a right to decide how and how much to charge for their services as an action, and that the government’s attempt to restrict that action infringes on those rights.”
Aaron of the Free Press is predictably skeptical of McSlarrow’s First Amendment argument. “It just simply has nothing to do with this issue,” Aaron says. “It’s completely unclear to me how giving a cable company the ability to favor some websites over other websites … is somehow an infringement on the cable company.”
In addition to the First Amendment concerns of the telecommunications companies, there are other legal challenges to potential FCC regulation. Barbara Esbin worked at the FCC for 14 years before becoming the senior Fellow and director for the Progress & Freedom Foundation’s Center for Communications and Competition Policy. Esbin is concerned that by making and enforcing Net Neutrality regulations, the FCC might be overstepping its bounds.
“I don’t think that there is a need for government regulation,” she says. “I don’t think the FCC is authorized by Congress to regulate the internet, and I think that unnecessary regulation of the internet could have negative unintended consequences.” Esbin says she is not “an implacable foe of Net Neutrality,” but she is more concerned with overregulation.
“There’s no evidence of either a systemic market failure that would indicate a need for the government to step in, nor is there evidence of consumer harm today,” Esbin says. “Nor is there evidence of widespread anticompetitive behavior on the part of the broadband ISPs.”
At the Heart of the Debate
Since 2006, the Net Neutrality debate has been characterized by an ongoing game of “he said/she said” between the telecom lobby and the pro-Net Neutrality lobby over the existence of or potential for corporate malfeasance. Whether such potential exists remains at the heart of the debate.
In order to broadcast their respective messages, both sides have lobbied Congress and tried to raise publicity for the issue. But the FCC’s call for comments offered a new opportunity for both proponents and opponents to disseminate their respective messages.
Esbin wrote to the FCC to protest the potential new rules. “The reason I chose to file on the legal question is that I believe strongly that we need government, and at times there is a reason to regulate industry,” she says. “But it is always the duty of government regulators to stay within their bounded authority and stay within the rule of law.”
Other members of the Progress & Freedom Foundation and
the NCTA also filed and published comments to
the FCC, choosing to submit well-publicized expert comments rather than flooding the FCC’s inbox.
Savetheinternet.com took the opposite approach. Aaron’s organization used its wide-reaching base (which, he says, includes the American Civil Liberties Union and the Christian Coalition) to appeal to a mass audience. By the time the FCC stopped accepting comments, Aaron says that there were nine comments in favor of strong Net Neutrality rules for every one comment against it.
Getting the Parties Started?
While Net Neutrality has been a legislative issue from the start, it was not originally a partisan issue. However, Obama and Sen. John McCain, R-Ariz., have voiced their respective views on Net Neutrality, and McCain even introduced a bill to block the FCC from enacting pro-Net Neutrality rules such as the ones it is now considering. McCain’s bill, the Internet Freedom Act of 2009, is still stuck in committee, as is Markey’s bill in the House.
But with an impending FCC vote that will likely be split along party lines, one question arises: Has Net Neutrality become a partisan issue?
“It’s become polarized in Washington, but what hasn’t?” London says. “My view is that the telcos are powerful lobbies in Washington, and they’ve been effective at generating opposition.”
The involvement of such high-ranking party members might have turned what was once a commercial issue into a partisan one.
“It started out as a regulatory issue, and normally they’re not terribly partisan,” Esbin says. “I think this one, like so many issues in Washington today, has become far more partisan than when it began, and that’s unfortunate.”
What’s at Stake
By Memorial Day, the first federal telecom regulations regarding Net Neutrality could be on the books. But that doesn’t mean that the fight is over. For people such as Aaron, the fight doesn’t end until the FCC rules, and maybe not even then.
“I think in the long run, I think we’re better off with a clear act of Congress,” Aaron says. For both sides, the stakes are high. The potential for the American consumer to lose out exists no matter what the outcome is.
“Likely, the broadband internet service providers will now turn a lot of the attention and capital into fighting fights in Washington,” Esbin says. “They might be less innovative in the production of services and find that their cost of capital has risen.”
Aaron is more pessimistic if the FCC decides to veto the Net Neutrality regulations. “I think we stand to lose the free and open internet as we know it. The beauty of the internet is that it’s always been a free and open market,” he says. “We’ve seen it time and time again on a neutral internet—a couple of grad students in a garage can start Google. Once you go online, you can go wherever you want, do whatever you want, and download whatever you want, as long as it’s within the law.”