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Understanding Title II and Network Neutrality - Community Broadband Bits Podcast #101
With all of the recent media discussions around network neutrality, reclassification, and "Title II," we decided to spend this week talking with Matt Wood, Policy Director for Free Press to simplify some key issues. For all the hub-bub around reclassification and dramatic claims that it represents some kind of fundamental policy shift, the truth is actually less exciting. Internet access via DSL was previously regulated under Title II of the Communications Act (as Verizon well knows and has used to its advantage).
And again regulating Internet access as Title II still allows for various forms of innovation and even paid prioritization if done in a "reasonable" manner. Matt and I discuss how Internet access came to changed from Title II to Title I last decade and the implications of moving it back now. Free Press also runs the popular SaveTheInternet.com.
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Thanks to Valley Lodge for the music, licensed using Creative Commons. The song is "Sweet Elizabeth."
Matt Wood: Having new tolls put up and collected by Verizon and AT&T and Comcast and these giants in the middle of the network will benefit those giant companies, but it will hurt all the rest of us.
Lisa Gonzalez: Hello there. You're listening to another episode of the Community Broadband Bits Podcast, from the Institute for Local Self-Reliance. This is Lisa Gonzalez.
If you're listening to our podcast, you're probably pretty savvy about the network neutrality debate. As you know, the conversation is stirring about the right of ISPs to charge more for what's been labeled a "fast lane." At muninetworks.org, we refer to the practice as "paid prioritization." This week, Chris interviews Free Press Policy Director Matt Wood. The Free Press is one of the organizations dedicated to educating the general public, and helping them participate in developing Internet policy. Innovations and technology are now forcing us to re-examine telecommunications policy. Media consolidation and their powerful lobbying machines drown out the voice of consumers. Matt helps explain the idea behind the possibility of Title II classification, the FCC's roles in the open Internet, and the consequences we can expect from paid prioritization. Here are Chris and Matt.
Chris Mitchell: Welcome to another edition of the Community Broadband Bits Podcast. I'm Chris Mitchell. And today, I'm speaking with Matt Wood, with the Free Press. Matt is the Policy Director of this DC-based organization, which has been critical to safeguarding the open Internet. Welcome to the show.
Matt Wood: Thanks, Chris. Great to be here.
Chris: You know, I just actually called you DC-based, and you've got a lot of people in Massachusetts. You're all over the place. Why don't you tell us a little bit about Free Press?
Matt: Sure. Yeah. We're all over the place physically, but hopefully not with our ideas. We are both inside and outside the Beltway. Northampton, Massachusetts. And a few people working in other places too. And then with an office here in Washington. And we basically try to bring real people's voices into these debates about communications policy that happen here in Washington, too often, just between big companies and maybe some other large stakeholders. And then we see our role as promoting the public interest, and giving people a voice in these conversations too.
Chris: So today, we're going to talk about network neutrality and some of the policy around it. I would expect that listeners would have an understanding of it. But we might simplify it as the idea that we should determine what we should do with our Internet connections, rather than the big companies -- like Comcast, AT&T, and the like. But, in particular, we're going to dive right in. And I want to ask you a little bit about the history. You know, we talk a lot about "reclassification." What are these different classifications?
Matt: The FCC first started considering these issues back in the '50s and '60s, when companies like IBM and lots of other big and small telephone system users started to send data over telephone wires. And so the FCC had to ask itself, well, how do we treat these new data services? Or are these the same thing as a telephone service? Or are they more like the voice call, in the sense that.... You know, the telephone wire is one thing, but what you and I say to each other over that wire is different. And, more to the point, is unregulated by the FCC. The FCC said there is such a thing as a basic service -- a telephone service, a telecom service -- today we would say a broadband service. And, while there is some relation between the two, that basic telecom service -- that ability to send your information from point A to point B -- is different from the information itself. So, again, you know, the phone line might be regulated, but what we say on that phone line is certainly not regulated by the FCC.
Congress took this issue up in 1996, which is the last time they did a really major overhaul to the nation's communications laws. And they basically took on that same FCC decision, and the same divisions they've made at the agency. But they changed the terminology slightly. So, today, when we talk about the classification of broadband, we here at Free Press and lots of other groups, and lots of people around the country, think that broadband should be classified as what he law today calls a "telecommunications service." You know, a service that gives you the ability to send information of your choosing to whomever else you want to send it to on that network.
The alternative -- and the place where the FCC has kind of tripped itself up over the last decade and a half now, is something called an "information service." Once again, as I've said, it's not that new of a concept. It's basically anything that you send over those wires -- or over those wireless airwaves. And something like a website or an e-mail program, or an app that you use -- all of those things would properly be considered information services -- something that uses the broadband network but is not the same thing as the broadband network. The FCC, in the name of deregulation, tried to basically say, well, we have continued authority over broadband, but we're going to put it into that same "information services" category. And that's where they've lost in court a few times. Where judges have -- I would say correctly -- pointed out that the FCC can't really have it both ways. You can't say that broadband is both the same thing as a website or the same thing as an e-mail program, for all intents and purposes under the law, and yet also still subject of FCC jurisdiction, and to prohibitions on things like blocking or discriminating against certain kinds of traffic.
So that's where we stand.
Chris: Would it be true to say that certain kinds of Internet access -- certain kinds of broadband -- were Title II, and other ones weren't? And we slowly move to a stage in which now none of them really are?
Matt: Yeah, that's exactly right. Or at least very few of them are. What the FCC did at first was -- In the dial-up era, we weren't really talking about broadband yet, obviously, so, you know, when people had AOL or any of other services to get on the Internet, you were quite literally making a phone call to a separate Internet service provider. And so, in that case, the internet service provider was an information service, but that line that connected you to them was still a telecom service.
As things evolved, and the telephone companies themselves started offering DSL services, those were originally classified as telecom services. Meaning that, you know, yes, it gets you online, but there is this basic transmission component, we might say -- this kind of basic service that carries your information from one point to another online. And the phone companies offered DSL services as telecom services all the way up to 2005. Where the FCC started making this distinction, and started down this deregulatory path -- And when I say that, it's not that deregulation, in and of itself, is a bad thing. It's just that we feel that this is the wrong approach for this particular question. They started down this deregulatory path with cable modem service. So, you know, the phone companies were, historically, telecom providers, obviously. And the cable companies were getting into this voice business, into this data business, or Internet connectivity business. And the FCC, when it first looked at the question of how to treat cable broadband, decided to say, it's not a telecom service, it's an information service. And to put it into this category -- where it still sits today. And -- which is the reason that the Commission has twice lost in federal court when people have sued them over their net neutrality rules.
Chris: Are there good technical reasons not to change it back to having Internet access as a telecom service? Or is this strictly a matter of the powerful lobbying and the -- sort of the presence of these big companies in Washington, DC?
Matt: Yeah. I think, certainly, more the latter. And the lobbying and political and propagandizing campaigns that have gone on. I mean, from a technical standpoint, I'm not an engineer, and shouldn't pretend to be one. But what the FCC did in 2002, which is when they were looking at this question of how to treat cable broadband, was to say, these services are inextricably intertwined -- that there's really no way to separate out the transmission function, that just sends your information around without changing it, from the information services that they layer on top of that. And, really, the model then was -- it was closer to the dial-up era than it is today, in some ways. You know, when you got -- I'll just use Comcast, since I've got -- I'm a Comcast customer --
Chris: Who isn't?
Matt: Yeah, right. And, soon, who won't be? Even more people. But -- you know. So, I get from Comcast not only my connectivity but I also get web-browsing capabilities. And I also get an e-mail address. And I get the ability to do all sorts of things online that Comcast is bundling together with their telecom service. And it went all the way up to the Supreme Court. The Supreme Court didn't say, yes, you're right, FCC, that's the way to think about it. They just said, this in your discretion -- that the FCC was right to say there was no logical way to look at this and kind of divide up those different services that Comcast or Verizon or AT&T might provide to you.
However true that was in 2002, it's certainly not true today, for almost anybody, you know. Very few people use the e-mail address that comes along with their broadband provider -- with their broadband provider's connection. Or, if they do, they probably use that but they also use a Gmail address, or some sort of work address that they get through their place of business, or through their university. So, you know, the notion that, somehow, the information riding on top of the wire is the same thing as the wire MAY have been a little more sensible back in 2002, even though we think it was wrong at the time, and said so at the time -- a lot of public interest advocates who were working on this back then. But whatever the truth of it was then, I think it's pretty clearly not the case today, as broadband technology and broadband uses continue to evolve.
It's somewhere between the technical and the political. There are, you know, legal questions -- well, can the FCC change its mind after making a decision like this? Or is there sufficient justification for them to change their mind? And we would say yeah in both cases -- they can definitely change their mind as the facts change. And they have the legal ability to do that. But, you know, like anything that happens, not only in DC but in this country, there will probably be a lawsuit. There will inevitably be lawsuits if the FCC goes down this path. We just think that they should be sued for doing the right thing, for a change, rather than for continuing to compromise -- and yet losing in court, even as they compromise, and give away a lot of their authority.
Chris: So, can I sum up the current situation as FCC Chairman Wheeler saying, net neutrality is a good thing, and we need to preserve it, and I can do that without reclassifying. And millions of people submitting comments saying, NO, you can't; the courts have told you twice; you can't; you have to reclassify if you want to preserve network neutrality?
Matt: Yeah, that's exactly right. I mean, what he's saying is: I agree that net neutrality is important, that ISPs shouldn't be blocking or discriminating against traffic, or slowing down or speeding up certain kinds of content. And what he's also saying is that I will protect you from that happening, using this compromised legal approach. And that's exactly what the DC Circuit Court of Appeals told him in January he COULDN'T do. What they said was that if the FCC continues to proceed without treating broadband as a telecom service, once again, ... Again, remember, they could do that, but if they decide not to do that at the FCC, then they have to allow ISPs substantial room for individualized bargaining and discrimination. They're basically saying, if it's not a common carrier service -- if it's not something that has to be made available to everybody on roughly the same terms -- then you have to let companies like Comcast charge a different rate to Netflix than they charge to Amazon. Or charge a different rate to some video sites than they charge to others. Or slice and dice however you want. That that is basically the only way to avoid getting struck down again for, you know, saying that broadband is not a telecom service and yet we're going to apply telecom obligations to it.
Chris: So, let's fast-forward a little bit to this future where we have the FCC having already decided to reclassify, and broadband is, once again, a Title II service. In that world, there still can be paid prioritization, right? I think this is a point that we're seeing some make right now, including Earl Comstock, who basically points out that, you know, you can still have differentiation with common carrier, but it's just that the FCC would have more tools. Is that -- I mean, basically, the question to you is: if we get Title II reclassification, does that automatically mean network neutrality is saved?
Matt: I wouldn't necessarily agree with the notion that they have to allow quote "paid prioritization." And here's what I mean by that. So, Title II was the place where the telecom regulations live in the statute. And if the FCC puts broadband back under Title II of the Communications Act and treats it as a common carrier, it will have the power to prevent what the law calls unreasonable discrimination -- or unjust and unreasonable discrimination. That's right there in the statute. That doesn't mean that every kind of differentiation -- I think that's a good word to differentiate from discrimination -- you know, that every different kind of service plan would be somehow illegal. That's not to say, you know, that everybody has to get the same speed at the same price. Because I can buy from my ISP 10 Mbps downstream and you can buy 20. And that's fine, because it's not discriminating between different sources. It's not saying, you know, Matt gets
10 because we don't like his content, but Chris gets 20 because he's got a special deal with us. It's just paying for pure capacity for transmission speed.
What the FCC could do, while allowing certain kinds of reasonable discrimination -- and differentiation like that -- is: they could say, well, "paid prioritization," where, you know, one company pays to be sped up to the exclusion of other companies, and to kind of knock other people out of that fast lane -- they could say that is, per se, you know, automatically unreasonable discrimination. It would give the FCC the power to not only say, well, as Tom Wheeler is saying now, when we see a bad practice, we'll ban it. It actually gives the FCC the power to set rules that say, here are the bad practices that we're not going to allow. And, oh, by the way, it actually gives them the authority to ban those things, and to, basically, keep the burden of proof on the broadband provider, who, if they want to make some kind of exception to that, and say, well, here's an instance where paid prioritization would be OK.... Or not paid, even, prioritization. Like for 9-1-1 calls, for example. That's an example that's often thrown out there. And, sure, that could be OK. It wouldn't mean that the default rule was, any time the ISP negotiates for extra money coming from somebody like Amazon or Netflix, that that would sort of have to be OK, and the FCC could only step in when there was some kind of egregious abuse or anticompetitive behavior.
Chris: So, if you and I create separate streaming services that were kind of similar but we both went into business separately, and you got this incredible deal through Comcast, and I had to pay Comcast a ton of money to get a similar deal, under Title II, the FCC could have rules that said, basically, no, you just can't do that.
Chris: Whereas, under the current approach -- this approach that Chairman Wheeler has outlined, which has a lot of us very concerned -- under that approach, I, as the inconvenienced party could then file a complaint to the FCC, and maybe spend a year, or several years, going through the legal process, and maybe ultimately have that changed. Is that pretty accurate?
Matt: Yeah, I think that's exactly right. That even if this test could stand up in court -- and we fear that it couldn't -- that it would be basically unworkable, or not really able to protect companies in that exact same situation. Or -- forget companies -- you know, non-profits and individual users as well. Because what you'd have to prove is that the deal that they cut with you was commercially unreasonable. And, again, you know, legal words aren't magic words, but they do have different meanings. To say something is unreasonable discrimination, or unjust -- whether, you know, in the dictionary it would mean this or not, on the law books, it means the FCC has more power to determine in advance what is unreasonable. This "commercially reasonable" standard is just a much lower bar for the ISPs to meet, and a higher bar for anybody who wants to challenge them, to get over -- if, in fact, this is what we get at the end of this process. And so, you know, that's kind of the -- that is the hallmark of what the court allowed the FCC to do using the "compromised" approach. If you want to stick with this, you're going to have to let ISPs make individual deals. And, you know, who's to say whether or not something is commercially reasonable or commercially unreasonable? It could be perfectly commercially reasonable to the ISP to make more money. That's what we're concerned about: that it will be, as you just said, a lengthy process to test that, and probably no protection even at the end of that lengthy process, because it's such a high bar, for small Internet companies in particular, to meet. First, to mount the challenge and have enough money to survive that; and then, to win on it at the end, even if they can get all the way through the process.
Chris: Great. So, thank you for helping us to really understand this complicated issue, that's quite important for the future of our ability to communicate.
Matt: Yeah, it certainly is. And it speaks to, really, our entire communications future -- if you want to call it that -- where, you know, we're asking questions about whether the FCC has ANY ability to protect broadband users. Or, if it's basically all left now to the biggest companies to set all of the terms and conditions for our Internet connectivity. And that's why we think it's so important.
Chris: And that's actually one of the things that I often think about, is that, you know, the future of the Internet could look like radio, where it's mostly dominated by a bunch of really crappy stations that are all owned by a few companies -- something that Free Press has been very active in opposing. Or, you know, it could be a future in which we still have many different companies able to innovate and do lots of interesting things. But I often think of that radio dial when I think of the future of the Internet that I don't want to see.
Matt: Yeah. And, right, the Internet has been a far more level playing field. It's kind of like, each new technology that comes along starts out much more open to everybody on a pretty level playing field -- as broadcasting was a century ago. And then, when the FCC steps in, it can either maintain that open character -- and "equal" character for everybody -- or it can allow -- or even require -- a few speakers to have louder voices. And that's kind of what happened with radio. And we've seen the consolidation happen there. And TV. As you said, that's exactly the result that we DON'T want to have on the Internet, where right now, once you're online -- you've got to pay to get there -- but once you're on the Internet, everybody else can reach you, on pretty much equal terms. And having new tolls put up and collected by Verizon and AT&T and Comcast and these giants in the middle of the network will benefit those giant companies, but it will hurt all the rest of us.
Chris: Well, thank you so much for coming on the show, Matt.
Matt: Thanks, Chris.
Lisa: Freepress.net is where you can learn how to get involved and share your opinion with decision makers. We're following the "network neutrality" debate at muninetworks.org. And, in addition to that tag, you can follow the "paid prioritization" tag, for specific resources on the "fast lane."
Send us your ideas for the show. E-mail us at firstname.lastname@example.org. You can follow us on Twitter. Our handle is @communitynets. This show was released on June 3rd, 2014. We would like to thank Valley Lodge for their song, "Sweet Elizabeth," licensed using Creative Commons.