If it isn't broken, you're not looking hard enough: net neutrality and its impact on minority communities.

• Author: Kamal, Sara

TABLE OF CONTENTS I. INTRODUCTION 330 II. BACKGROUND AND LEGAL HISTORY 331 A. The FCC and the Development of Net Neutrality 331 B. After Extensive Debate, the FCC Enshrined Net Neutrality in the Open Internet Order 336 C. In the Matter of Protecting and Promoting the Open Internet 337 D. Minority Groups Are Categorically Underrepresented in the Media 339 III. ANALYSIS 341 A. The FCC Was Correct to Reclassify Broadband Companies as Common Carriers to Protect and Ensure Net Neutrality 341 B. What Net Neutrality Means for Minority Communities 343 C. The FCC Must Actively Protect the Open Internet 345 D. Why Minority Groups Seem to Be Split on the Issue 348 E. Is Zero-Rating Still a Valid Option? 350 IV. CONCLUSION 351 I. INTRODUCTION

A rose by any other name may smell as sweet, but the same is most certainly not true of Internet Service Providers under the authority of the Federal Communications Commission (FCC). In the FCC's garden of regulations, an entity's classification matters more than the substantive characteristics of said entity. By regulating Internet Service Providers (ISPs) under Title I of the Communications Act of 1934, the FCC initially forfeited its right to strongly regulate these entities, leading to a debate that has become one of the most hot-button issues to the American public: net neutrality.

When cogitating on net neutrality, many fail to consider all aspects of the debate, including the effect it has on minority communities. However, it is the unique struggles of these underrepresented communities that make FCC regulation of ISPs necessary. This Note will tackle the Net Neutrality debate by considering the disproportionately negative impact on minority groups that would result from ISPs' discriminatory behavior. While there may be no perfect solution, light must be shed on the unique challenges that minority groups face when dealing with Open Internet issues. There is a very real threat that Internet fast lanes can have a negative impact on the public in the long run, especially on these underrepresented minority communities.

The FCC is responsible for ensuring that telecommunications, cable, and broadcast companies continuously carry out the policies established by the Communications Act of 1934. (1) With the mission of promoting competition to "secure lower prices and higher quality services for American telecommunications consumers," the Telecommunications Act of 1996 ("1996 Act") gave the FCC both the responsibility and the means to ensure innovation and the continued deployment of new telecommunications technology. (2)

The Internet has rightfully been credited for the accelerated innovation that characterizes this generation, and this innovation must be protected as it continues to grow and contribute to the United States economy. Net neutrality is the general concept that ISPs should enable access to all content and applications equally, regardless of the source, without favoring or blocking particular online services or websites. Simply put, the company that connects you to the Internet should not be able to control what you do on the Internet or how you do it. The net neutrality policy debate must work to foster continued innovation and progress to the public as a whole, which includes our silenced communities and not just the loud majority.

Bringing broadband providers (ISPs) under the authority of the FCC via Title II regulation is a controversial yet necessary move to prevent a disproportionate negative impact on minority communities who have categorically been underrepresented in the media. The courts have confirmed that the FCC does not have authority to enforce strong net neutrality rules on ISPs as Title I entities. Because of this, protecting minority communities can only be adequately done by reclassifying ISPs as Title II entities.

Minority communities in the United States are categorically underrepresented in the media because of a disproportionately low number of opportunities and financial resources. The Internet is currently the primary means for minority communities to have their voices heard. Without an open Internet, their presence in both traditional and new Internet-based media will remain disproportionately underrepresented. Further, minority groups are often negatively stereotyped in the media, which furthers the negative impacts these particular groups face. Net neutrality ensures an open Internet for which minority groups can equally and fairly be heard.

Bringing ISPs under Title II regulations but only subjecting them to certain regulations (forbearance) will promote innovation and equality while also keeping the "open Internet" as open and unregulated as possible. This modified regulatory control over ISPs will also allow the FCC to ensure that minority communities do not suffer a disproportionately negative impact as their primary means of participating in the media will continue to be protected.

While the FCC has taken bold moves to regulate ISPs, the issue of zero-rating, or not charging users for using particular web-based applications, has not been fully addressed. Part II will discuss the path the FCC has taken through net neutrality while Part III of this Note will delve into the impact on minority communities as well as the validity of zerorating as an option going forward.

2. BACKGROUND AND LEGAL HISTORY

   1. The FCC and the Development of Net Neutrality

      The Communications Act of 1934 put an end to the Federal Radio Commission and created the FCC to regulate interstate and foreign communication by wire or radio. (3) The Communications Act of 1934 also created title classifications, with Title II subjecting common carriers to stricter regulatory control under the FCC. (4)

      The distinction between what was and was not regulated under Title II first came in 1980 with the Computer II regime. (5) The Commission drew a line between "basic" services which purely involved the transmission of information and were subject to Title II common carrier regulations and "enhanced" services which involved the processing of said information and were not subject to Title II. (6)

      The Computer II regime continued for more than twenty years until 1996, when the Communications Act underwent its biggest overhaul since its enactment with the passage of the Telecommunications Act of 1996. (7) Congress designed the 1996 Act to open up the market and foster competition by removing unnecessary barriers to entry into the market. (8) In removing these barriers, the 1996 Act was aimed at increasing competition and sparking innovation in a fast-paced and ever-changing field. (9) Further, the 1996 Act defined telecommunication services as what was formerly "basic" services and defined information service providers as what was once known as "enhanced" services. (10)

      With this newfound purpose, however, the FCC was faced with several important decisions that would have a deeper impact on its regulatory scheme than it could have ever imagined. The FCC also chose to codify its longstanding distinction between telecommunications service and information service. (11) In what many consider a game-changing decision, the FCC chose to classify broadband cable service (ISPs) (12) as an information service rather than a telecommunication service. (13) This excused ISPs from the stricter regulatory control of Title II common carriers and instead subjected them to Title I regulation. (14) This allowed for media crossownership, as Congress intended, as phone, cable, and internet providers converged. (15) In bringing all of these providers together, some feel that power in the field was consolidated into fewer big players, leading to less innovation and undercutting the goals of the 1996 Act. (16) However, it is important to note the opposite stance. With cable companies now providing phone services or companies like Verizon now offering new services that their competitors did not, competition in these fields increased, leading to innovative technologies and solutions in an ever-changing field. (17)

      The Supreme Court upheld the FCC's decision not to regulate ISPs under Title II almost ten years later in National Cable and Telecommunications Ass'n v. Brand X Internet Services. (18) The Court held that the FCC's intended purpose in its classification was to promote innovation and entry into the broadband market, which was best achieved by treating cable service providers differently because of the current market conditions. (19) Brand X had argued that the FCC should classify broadband cable internet access as a common carrier, regulated under Title II, but the Court applied Chevron deference (20) to the Commission's decision. (21) With the Supreme Court providing the final, definitive word on the matter, ISPs were able to evade the tighter restrictions of Title II regulation.

      In 2005, the FCC then released an Internet Policy Statement, to "ensure that broadband networks are widely deployed, open, affordable, and accessible to all consumers." (22) The Statement adopted the following principles:

      To encourage broadband deployment and preserve and promote the open and interconnected nature of the public Internet, consumers are entitled to access the lawful Internet content of their choice,... to run applications and use services of their choice, subject to the needs of law enforcement..., to connect their choice of legal devices that do not harm the network..., [and to promote] competition among network providers, application and service providers, and content providers. (23) In 2010, the District of Columbia Circuit confined the FCC to its previous decision yet again in Comcast Corp. v. FCC. (24) The FCC, claiming its authority from the Communications Act of 1934, attempted to condemn and censure Comcast for interfering with its subscribers' use of peer-to-peer software. (25) However, the District of Columbia Circuit held that the FCC could not extend their control over Comcast, because...