WASHINGTON, December 9, 2009 – A cable industry leader made the case Wednesday that proposed government rules to regulate internet access in support of so-called Net neutrality or open internet principles are not only unnecessary but would threaten First Amendment rights.
“Net neutrality rules have the potential to restrict protected speech in myriad ways – and not just the speech of internet service providers,” said Kyle McSlarrow, speaking at a luncheon at the Four Seasons sponsored by the Media Institute.
“In some ways, from the millions of consumers who interact and engage on the Internet, to the facilities that provide those services, to the applications and content providers on the Web, the Internet is all speech. So as the FCC considers regulating in this area, it’s important that the agency carefully examine whether net neutrality rules can be justified under First Amendment standards,” McSlarrow said.
“But urging the government to impose rules that supposedly promote First Amendment values is too often used to justify regulations that instead threaten First Amendment rights,” he said. “By its plain terms and history, the First Amendment is a limitation on government power, not an empowerment of government.”
McSlarrow’s association represents cable operators that serve more than 90 percent of the nation’s cable television households and more than 200 cable program networks. According to NCTA, the cable industry is the nation’s largest broadband provider of high-speed Internet access.
McSlarrow said net neutrality rules “could infringe First Amendment rights because they could prevent providers from delivering their traditional multichannel video programming services or new services that are separate and distinct from their Internet access service.”
The First Amendment reads: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”
He said almost every net neutrality proposal would seek to control how an ISP affects the delivery of Internet content or applications as it reaches its customers. This raises forced speech issues and is not necessary as ISPs have said they will not block customers from accessing lawful content or applications on the Internet, said the cable official.
“Imposing regulations that prevent providers from using “too much” capacity for speech-related services not even associated with Internet access should cause all sorts of First Amendment and Fifth Amendment Takings alarm bells to go off,” said McSlarrow.
The FCC’s net neutrality rules as proposed “would prohibit ISPs and applications providers from contracting for any enhanced or prioritized delivery of that application or content to the ISPs’ customers,” he continued. The FCC rules could prevent some content providers from offering material in the form they want, which raises the question of whether the First Amendment allows “the government to prohibit a content or applications provider from paying to acquire the means to distribute its content in the form or manner it wishes?” asks McSlarrow.
“To tell a new entrant or an existing content provider that it cannot enter into arrangements with an ISP for unique prioritization or quality of service enhancements that might enable it to enter the marketplace and have its voice heard along with those of established competitors interferes with that provider’s speech rights in a way that should immediately invite First Amendment scrutiny,” said McSlarrow.
Progress & Freedom Foundation Senior Fellow Barbara Esbin also addressed the First Amendment issue in a paper released Wednesday on the Net neutrality debate. “Under traditional First Amendment jurisprudence, the government compelling a speaker to speak or transmit a message that it does not wish to transmit is just as much a free speech infringement as it is to prevent a speaker from transmitting or posting messages it wishes to transmit or post,” she wrote (PDF).
“If I believed that in the future our broadband ISPs will arbitrarily degrade service, that our antitrust and other consumer protection laws will be inadequate to protect consumers, and that our core First Amendment freedoms will be threatened by the lack of network neutrality rules, I might join the “pro” side of the network neutrality debate. But I don’t,” wrote Esbin.
Esbin’s and McSlarrow’s perspective runs counter to many who argue that Net neutrality regulation is key to preserving free speech principles.
“Internet providers like AT&T and Verizon want to permanently eliminate Network Neutrality, the Internet’s First Amendment and the key to Internet freedom,” according to MoveOn.org Civic Action.
The Federal Communications Commission plans to hold a workshop next week on free speech, democratic engagement and the concept of an open internet.
The meeting is one of a number of public workshops the FCC said it plans to hold in December and January as part of the open Internet Notice of Proposed Rulemaking. “These workshops will explore issues raised in the proceeding, including the technical realities of broadband networks and the impact of the Internet’s openness on various interests, including speech, democratic engagement, consumers, innovation, and investment,” reads the FCC notice (DOC).
In the FCC’s NPRM it also addresses the First Amendment issue. “We also seek comment on whether our proposed nondiscrimination rule will promote free speech, civic participation, and democratic engagement. Would discrimination by access providers interfere with those goals?
“Conversely, would our proposed rule impose any burdens on access providers’ speech that would be cognizable for purposes of the First Amendment, and if so, how? Would any burden on access providers’ speech be outweighed by the speech-enabling benefits of an open Internet that provides a non-discriminatory platform for the robust interchange of ideas?” reads the document (PDF).
Biden Signs Executive Order on Net Neutrality, Broadband Pricing Policy and Big Tech Merger Scrutiny
Executive order would kickoff new antitrust and net neutrality regulations.
July 9, 2021—President Joe Biden on Friday announced his intent to sign an executive order addressing an array of 72 initiatives, including net neutrality, and generally taking aim at big telecom and tech companies to address competition in the economy.
The White House released a fact sheet on the goals and the actions to be taken to achieve them.
The order would, among other things, task the Federal Communications Commission with reinstituting pre-Trump administration net neutrality rules.
Net neutrality refers to the concept that broadband providers must not block or throttle the content that consumers seek to access on the internet, or provide preferential access to content by business partners.
Under former President Barack Obama, the FCC in February 2015 enacted net neutrality rules promoting what his administration called “the open, fair, and free internet as we know it today.”
Broadband pricing policy
Biden’s order also tackled broadband policy and the digital divide more broadly.
It pointed to the 200 million Americans that live in regions with only one or two internet service providers and stated that this contributes to inflated internet service prices up to five times higher than in areas with more than two ISPs.
The order also condemned relationships between landlords and broadband providers that block new providers from expanding or improving broadband infrastructure to unserved and underserved areas, and it urged the FCC to enact rules to ban such deals and relationships.
To improve price transparency, Biden also urged the FCC to implement a “Broadband Nutrition Label” and require that all broadband providers report their service plans and rates to the FCC for evaluation.
Additionally, the plan directed the FCC to address unreasonably high, early termination fees enacted by broadband providers. The Biden administration argues that these fees are often in place only to discourage consumers from switching to what may be a superior internet service.
Big tech a target, too
In addition to broadband policy, the order would also take aim at data collection and mergers by big tech companies. The factsheet specifically mentioned that the order would tackle “kill acquisitions” designed to stifle perceived competitive threats to tech companies and pointed out that federal regulatory bodies have not done enough to prevent these mergers.
The administration would adopt a policy to greater scrutinize potential mergers, according to the White House fact sheet.
Additionally, the administration also condemned data collection policies by big tech companies, pointing to business models completely dependent on harvesting of sensitive consumer data. To address this, he tasked the Federal Trade Commission to draft new rules on consumer surveillance and data collection.
Net neutrality advocate at the FCC
FCC Acting Chairwoman Jessica Rosenworcel has been a longtime advocate for strong net neutrality laws. Though her critics have argued that there have been precious few examples of companies throttling their consumers internet speed, Rosenworcel has supported initiatives that would classify internet service providers as “common carriers,” and would forbid them from interfering in a user’s internet speed or the content they view.
Explainer: On the Cusp of Sea Change, Broadband Breakfast Examines the Net Neutrality Debate
In the first in a series of explainers, Broadband Breakfast has hand-picked the debate on net neutrality to bring readers up-to-speed on its history and future.
With a change in the guard at the Federal Communications Commission and the White House, the United States is on the cusp of a possible change in direction with respect to its network neutrality rules.
By the summer of 2018, the country had changed its position on the issue when the Trump-era FCC voted to roll back Obama-era rules that, in 2015, cemented rules bolstering net neutrality. The roll-back essentially allowed the telecoms to manage and give preferential treatment to certain traffic that run on their networks.
But something changed. It started when the Department of Justice — the new one under the administration of President Joe Biden — withdrew a lawsuit started under Trump’s presidency against California for its proposed net neutrality rules. After the internet service providers lost a legal challenge to the proposed rules, California became the first state to implement the new legislation.
Join the Broadband Breakfast Live Online “Ask Us About Net Neutrality” on Wednesday, May 12, 2021. You can also PARTICIPATE in the current Broadband Breakfast Live Online event. REGISTER HERE.
Then the Biden White House appointed Tim Wu, a fierce advocate for and who coined the term “net neutrality,” to the National Economic Council this year.
There’s an emerging debate across the country about whether more states will follow suit or if a federal-level plan will emerge first.
Before that’s answered, Broadband Breakfast is taking a step-back and has put together an explainer on the issue to get you up-to-speed on its history and what’s at stake.
- Broadband Breakfast Explainer 1 (Net Neutrality): On the Cusp of Sea Change, Broadband Breakfast Examines the Net Neutrality Debate
- Broadband Breakfast Explainer 2 (Spectrum): Is Spectrum Sharing a Key to Broader Connectivity Goals?
- Broadband Breakfast Explainer 3 (Section 230): With Florida Social Media Law, Section 230 Now Positioned In Legal Spotlight
- Broadband Breakfast Explainer 4 (Antitrust): Antitrust Heats Up as Biden Selects Tech Critic Jonathan Kanter for Top Enforcement Spot
What is net neutrality?
Net neutrality is the concept that traffic on networks cannot be blocked, slowed, accelerated or otherwise altered by internet service providers. In essence, it is the concept that legal internet activity must be treated equally.
The term was coined by Columbia University media law professor Tim Wu in 2003, in a paper about online discrimination. It was an extension of the longstanding concept of a common carrier, used to describe the role of telephone systems as infrastructure that simply transports traffic from one destination to the next with no influence.
The common carrier concept in common law countries says that, regardless of who is using the internet, what content is on it, the website being accessed, or the platform and application it is operating on, nothing will be discriminated against or favored more than another.
What happens when net neutrality is abandoned?
When net neutrality rules were rolled-back in 2018, the ISPs struck. According to Bloomberg, citing research out of Northeastern University and the University of Massachusetts, Amherst, wireless carriers have since slowed internet traffic to and from applications like YouTube, Netflix, and Microsoft’s Skype video chat service.
Proponents of zero-rating, the concept that includes apps not counting against users’ monthly data allowance, said it would provide for opportunities for those to experience these services without incurring cost – perhaps in overage charges. Opponents, however, argued it could possibly create an information divide, whereby the less advantaged would be forced to consume certain services and not others.
The rocky history of net neutrality
In the early 2000s, the Federal Communications Commission (FCC), a U.S. regulatory agency, required broadband providers to share their infrastructure with competing firms. In 2005, those requirements were struck down by the Supreme Court. The debate at the time was trying to determine if broadband service providers should also be considered as information services, which allows users to publish and store information online or on telecommunication services.
Watch our 2:57 minute preview video on Net Neutrality
The Obama administration approved net neutrality rules in 2015. This partially barred ISPs like AT&T and Comcast from purposefully increasing, sometimes called throttling, or decreasing speed access to websites based on demand or business preferences.
On the Obama White House Archives site, it says that most internet providers have treated internet traffic equally, “that an entrepreneur’s fledgling company should have the same chance to succeed as established corporations, and that access to a high school student’s blog shouldn’t be unfairly slowed down to make way for advertisers with more money.”
On February 26, 2015, the FCC voted in favor of strong net neutrality rules and on June 14, the same year, the U.S. for the District of Columbia fully upheld the FCC’s net neutrality rules. The Obama administration called it a victory for “the open, fair, and free Internet as we know it today.”
On November 21, 2017, FCC Chairman Ajit Pai, appointed by former President Trump, unveiled a plan to roll back the Obama administration rules. The plan went into effect on June 11, 2018, and on October 1, 2019, the D.C. Circuit Court of Appeals upheld the FCC’s plan to repeal most of the provisions of net neutrality but struck down a provision that would block states from implementing their own open internet rules. Chairman Pai said in a statement that the appeals’ decision was a “victory for consumers, broadband deployment, and the free and open Internet.” “The court affirmed the FCC’s decision to repeal 1930s utility-style regulation of the Internet imposed by the prior [Obama] Administration,” the statement said.
In 2018, the Senate voted to overturn the repeal of net neutrality but the resolution stalled in the House. The House then put it to a vote again in 2019 under the “Save the Internet Act,” but it was effectively dead in the water, at least until 2021.
In favor of net neutrality
Advocates in favor of net neutrality focus on providing smaller companies equal opportunity to thrive. By not allowing ISPs to determine the speed at which consumers can access certain websites or online services, smaller companies will be more likely to enter the market and create new services. Smaller companies are protected in the sense that they may not be able to afford “fast lane” access, while larger, more established companies can.
These advocates for net neutrality point out that several well-established social network websites were created without much seed capital. Had these small businesses been forced to pay extra in order to be as accessible online as their competitors, success may never have come.
Proponents of net neutrality include:
- Human rights organizations
- Consumer rights advocates
- Some software companies
These groups argue that cable companies should be deemed “common carriers,” similar to public utility companies or public transportation providers, who are by law, forbidden from discriminating among their users.
Public Knowledge, a non-profit Washington, D.C.-based public interest group focused on competition, digital choice in the marketplace, and an open standards and end-to-end internet, is in favor of net neutrality.
It says that without net neutrality rules, “ISPs like Verizon and Comcast can prevent users from visiting some websites, provide slower speeds for services like Netflix and Hulu, or even redirect users from one website to a competing website.” Public Knowledge claims that consumers would ultimately be hurt by anti-net neutrality policies, bearing the additional costs on things like their monthly Netflix bill or in the cost of goods from a local online store.
Against net neutrality
Advocates against net neutrality focus on investment incentives and cost concerns for broadband infrastructure. If ISPs are forced to treat all internet traffic equally, the government will ultimately discourage the investment in new infrastructure, and will also see ISPs be slow to innovate. Upfront costs with laying down fiber optic cable can also be very expensive. They say that not being able to charge more for more challenging areas of access will make the investment harder to pay off.
Opponents of net neutrality include:
- Conservative think tanks
- Major telecommunications providers
- Some hardware manufacturers
Telecommunication providers argue that “they must be allowed to charge tiered prices for access in order to remain competitive and generate funds needed for further innovation and expansion of broadband networks, as well as to recoup the costs already invested in broadband.”
Having less oversight on internet service by allowing some ISPs to charge for access to some content would lead to free access to certain sites, reports IT Pro. For example, if ISPs charged more money to bandwidth-hungry companies like Netflix for using their infrastructure, they could offer access to sites like Wikipedia or Facebook for free—even if a consumer had no internet contract.
Net neutrality controversies
The repeal of net neutrality rules has exposed some of the complexities of allowing ISPs to do what they wish with internet traffic. That isn’t more true than for the vertically-integrated providers, who both own the networks and content services that run on them. This has created a debate about possible anti-competitive behavior: what would stop a provider to block or slow traffic on a competing service and speed-up or eliminate data usage on their own services?
That’s exactly what happened with AT&T’s WatchTV streaming service, which was a new product in 2018, following its acquisition of Time Warner (now WarnerMedia). That year — after California backed down from cracking down on zero-rating — the service gave subscribers the option of a subscribing to a bundle of channels with no charge against their data allotment. (After California made its net neutrality legislation law this year, AT&T axed its zero-rating practice in the state and said it would likely have to do the same with the rest of the country.)
And then there were the 2018 California wildfires, some of the worst in the state’s history.
The bombshell from that was the Santa Clara fire department alleging Verizon had throttled its services, which “had a significant impact on our ability to provide emergency services,” the department said, according to Ars Technica.
The evidence was submitted as part of a lawsuit to reinstate federal net neutrality rules.
The telehealth question
The wildfires incident may take some bite out of the argument that net neutrality rules should be loosened to allow special exemptions to emergency services, but it’s quickly becoming a hot topic for another emerging segment: telehealth.
The Covid-19 pandemic has effectively upended the traditional in-person setting for nearly everything. But it’s especially problematic for medical services.
Critics of the net neutrality law in California are reportedly concerned that a telehealth app, VA Video Connect, whose use doesn’t count against users’ data caps, may be blocked under the legislation.
Boost Mobile, seeing the emerging opportunity, recently announced that it is bundling telehealth services with its packages.
There are exemptions that can be made in state and federal laws for emergency and health services, so time will tell what those could look like.
The future of net neutrality
As the federal government still has net neutrality on the ropes, states have stepped in to guard the internet’s traffic neutrality. Both proponents and opponents of net neutrality have argued that internet freedom will prevail if their side wins.
As of January 2021, 19 states, including the District of Columbia and Puerto Rico, introduced legislation in the 2020 legislative session that supports net neutrality.
Though some have taken net neutrality into their own hands, such legislation, even on a state level, can be challenging to implement. The FCC has claimed only itself has the authority to make these kinds of regulations, and that local and state governments cannot pass laws inconsistent with federal net neutrality rules.
In October 2019, a federal appeals court ruling in October 2019 largely upheld the decision to abolish net neutrality, “but ordered the FCC to examine its effect on public safety, federally subsidized broadband services, and utility pole regulations.”
Join the Broadband Breakfast Live Online “Ask Us About Net Neutrality” on Wednesday, May 12, 2021. You can also PARTICIPATE in the current Broadband Breakfast Live Online event. REGISTER HERE.
For or Against, It’s Time To Consider Codifying Net Neutrality In Law, Panelists Say
March 18, 2021 – The issue of net neutrality has captured more bandwidth than needed and the concept – either for or against – must be codified in the law so the issue doesn’t surface every election cycle, the president of the App Association said during a Federal Communications Bar Association event Thursday.
“Absent congressional action, this yo-yo will continue,” said Morgan Reed, whose organization represents app makers and connected device companies. Reed proposed Congress deal with the matter by, once and for all, putting it in the Telecommunications Act.
The debate about net neutrality, which stipulates that all internet traffic should be treated equally and that no telecom should be able to accept payment to speed up applications, has picked up since the Federal Communications Commission changed leadership and President Joe Biden took office.
The acting chairwoman has been a supporter of net neutrality. Biden’s justice department dropped a lawsuit recently challenging a proposed net neutrality law in California, which AT&T said forced it to stop offering free services because it would not be able to give it preferential treatment under the proposed law.
All roads seem to point to the reinstatement of net neutrality rules once instated by the Obama-era FCC but was reversed by the Trump-era regulator.
Currently, telecommunications is categorized as a Title I service, meaning it is spared from additional FCC regulatory burdens like managing content over its networks. That can be reversed if it is reclassified as a Title II, which effectively bring it under the ambit of the net neutrality rules.
Kristine Hackman, vice president of policy and advocacy at US Telecom, said operating under Title I regulations is not appropriate and outdated.
“We can’t regulate internet well with a statute that was written before World War II!” She defended ISPs and said they are not engaging in throttling, despite what she called false accusations suggesting otherwise, and said it is not in their natural conscience to even try to throttle since the consumer is in their minds.
Part of the issue with the approach to net neutrality is the confusion surrounding who governs the issues. Jon Peha, professor at Carnegie Mellon University, said that the newspapers these days confuse legal authority with the rules, saying the FCC’s authority to regulate is muddied with what authority the Federal Trade Commission has. He said the current position of the FCC is that it has no authority to deal with net neutrality, privacy, and even pole attachments, explaining that its authority over communications infrastructure is unclear.
- TPRC Conference to Discuss Definition of Section 230, Broadband, Spectrum and China
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