Broadband in the Age of Pai: the Past, Present, and Future of the Internet

• Publication year: 2017

Broadband in the Age of Pai: The Past, Present, and Future of the Internet

Christian Haman

BROADBAND IN THE AGE OF PAI: THE PAST, PRESENT, AND FUTURE OF THE INTERNET

Introduction

What makes the internet so great? For millions of people in the United States and abroad, the internet is a means of communication and exchange, where ideas and content are exchanged free from censorship or interference by the private companies that provide internet to consumers. However, that freedom is now coming under fire by a new generation of leadership at the Federal Communications Commission (the "FCC"). The new Chairman of the FCC wants internet service providers, such as Xfinity and Verizon, to be able to adjust how fast certain websites are accessed. In doing so, the FCC would be getting rid of "net neutrality", which is commonly defined as the premise that internet service providers should treat all internet traffic in an equal fashion, even if the source is unpopular or unprofitable.¹ Removing certain net neutrality regulations would present opportunities to help consumers, but the FCC should keep in place most of the rules they promulgated in 2015. If the FCC makes the mistake of removing net neutrality rules, internet service providers should still act as if net neutrality was still in force unless straying from net neutrality results in faster, more affordable, and more available access to broadband internet for everyone. Similarly, Congress should make every possible effort to pass legislation to enforce net neutrality if the FCC is unwilling to do so itself. Faster internet opens up countless opportunities for creativity, innovation, and commerce, and we must protect net neutrality to secure those opportunities for future generations.

The internet has become so intertwined with America's cultural fabric that it has come to be viewed as a basic utility or piece of infrastructure, accessible by all. Support for that idea is lent by politicians such as Senate Minority Leader Chuck Schumer, who compared the internet to both infrastructure and utilities when he said that "[w]e don't reserve certain highways for a single trucking company, and we don't limit phone service to hand-picked stores. In

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today's economy, it is equally important that access to the backbone of twenty-first century infrastructure, the Internet, be similarly unfettered."²

The FCC should avoid dismantling most of the protections laid out by the 2015 Open Internet Order, which protects net neutrality so that every website on the internet can be accessed without purchasing specialized data plans. Additionally, corporations which provide high-speed internet should abide by net neutrality standards even if those standards are removed, unless said internet service providers can find a better way to enhance value for every internet user. Lastly, Congress should pass a bill which forces the FCC to comply with net neutrality standards, while limiting the instances where the FCC must abstain from enforcing rules. These actions, in the aggregate, would hopefully be enough to ensure that children have access to educational programs, that people in rural areas can receive medical diagnoses without driving 10 hours, and that newer websites will have the opportunity to rise and become part of American culture.

I. History

The history of the internet has been fraught with challenges, both in its creation and in its maintenance. Many of the challenges facing the internet today are questions which have been long-standing, and understanding the history of the FCC's internet regulations helps to underscore why net neutrality is so important, why corporations should comply with net neutrality standards, and why Congress should force the FCC to promulgate and enforce pro-neutrality rules.

Prior to the popularization of what we now know as the internet, the FCC decided to create two classifications to regulate various carriers' "offering of transmission capacity for the movement of information".³ The first classification was "basic transmission services", which were services which only provided bare-bones "transmission capacity", whereas the second classification was "enhanced services", which would use "computer processing applications . . . or provide the subscriber additional, different, or restructured information, or involve subscriber interaction with stored information."⁴

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Early on, most of the internet was regulated as a "basic transmission service", but that was poised to change. In 1996, Congress passed the Telecommunications Act. The Telecommunications Act of 1996 kept in place regulations on basic communications services, which were subsequently renamed "telecommunications services".⁵ Among those regulations were so-called "common carriage" regulations, which were rules preventing internet service providers from altering, slowing, or blocking the transfer of lawful information.⁶ However, it also required the FCC to refrain from enforcing regulations, including net neutrality, on "information" services—as "enhanced services" were now called—if the FCC determined that nonenforcement would be in the public interest.⁷

While Congress was passing the Telecommunications Act, a new type of internet access was being tested which fundamentally expanded the number of ways that people can use the internet. "Broadband", as the service was known, allowed for internet service providers to offer internet connections which were always on and offered consistently higher speeds than traditional "dial-up" internet.⁸ Dial-up internet is a method of internet connection which uses traditional phone lines to connect to "dial into" a centralized internet hub via a "digital handshake", the source of the famous "dial-up sound", which needs to happen every time a dial-up user wishes to go online.⁹ With the advent of broadband, internet service providers had much more "bandwidth", which is the measurement of how much data can be sent along a particular "band" of internet spectrum.¹⁰ Traditional dial-up internet connections are limited to a maximum speed of 56 kilobits/second.¹¹ By comparison, the median internet

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download speed in 2015 was 41 megabits/second, or roughly 41,000 kilobits/second.¹²

Naturally, in an effort to avoid regulations, internet service providers sought to reclassify broadband internet as "information" services on the basis that broadband involved the sort of computer processing and additional information described in the FCC's regulations.¹³ In 2002, the FCC announced that it was interpreting the Telecommunications Act of 1996 to mean that broadband services were indeed information services, rather than telecommunications services. Multiple parties sued, and one case made it to the United States Supreme Court in 2005, National Cable & Telecommunications Association v. Brand X Internet Services.¹⁴

In National Cable, the Court's majority opinion, penned by Associate Justice Clarence Thomas, held that the Chevron doctrine applied to the FCC's decision to classify broadband internet as information services. In particular, the Court found that the FCC's interpretation of the Telecommunications Act did not need to be the "best reading" of the statute as the Ninth Circuit Court of Appeals had held, but merely needed to be a "permissible" reading.¹⁵ Applying Chevron's "two-step procedure for evaluating whether an agency's interpretation of a statute is lawful", the Court found that "[t]he Commission's interpretation" was "permissible at both steps".¹⁶ In fact, Thomas' opinion went on to state that, due to the complex nature of communications, "[t]he Commission" was "in a far better position to address these questions than we are."¹⁷

One key point to note when examining the Telecommunications Act of 1996 was that it mandated the FCC exercise forbearance only if the Commission determined that "forbearance from applying such provision or regulation is consistent with the public interest."¹⁸ In 2007, the FCC began reconsidering whether forbearance from regulations on broadband providers

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really was in the public interest, most notably after Comcast began denying or limiting customer access to certain websites.¹⁹ To be more specific, Comcast began blocking and limiting access to "Peer-to-Peer" networking sites, which are websites that "allow users to share large files directly with one another without going through a central server" but "also consume significant amounts of bandwidth".²⁰ Comcast argued in court that slowing and blocking peer-to-peer networking sites helped the company keep internet speeds up for everyone else.²¹ The FCC acted slowly and methodically, but not decisively. By the time they acted, Comcast had already changed the way their company managed bandwidth.²² In lieu of imposing a fine or some other penalty, the FCC merely asked Comcast to tell them how they were changing their system and what measures they were using to measure how things had progressed.²³ Comcast subsequently sued the FCC, arguing that the Commission lacked the jurisdiction to back up their demands.²⁴ The FCC responded by arguing that the power to investigate Comcast and compel disclosure of certain information fell under FCC ancillary jurisdiction, because the power to investigate Comcast's business practices were necessary for the FCC to perform the agency's statutorily prescribed functions.²⁵ The Court of Appeals for the DC Circuit heard the case, and ultimately ruled in favor of Comcast, finding that the FCC failed to cite a sufficient statutory basis for their claim to that particular type of investigative authority.²⁶

In response, the FCC promulgated rules through the 2010 Open Internet Order (the "2010 Order"). The 2010 Order would require disclosures not unlike the kind they requested from Comcast, but also prohibited blocking and throttling the speed of lawful content on the internet.²⁷ In effect, the 2010 Order ostensibly gave the FCC...