Who’s On First? Demystifying Net Neutrality

by Ed Lamoureux
Bradley University

Determining who wins—and who loses—in the new media era

In his book Technopoly, educator and media theorist Neil Postman reminds us that we always pay a price for technology (especially for new technologies), that media technologies result in winners and losers (and the winners always try to persuade the losers that they are really winners), and that every great technology comes with embedded prejudices and preferences.

The systems and networks that deliver the Internet are fundamental and foundational components of contemporary life. As such, empowering gatekeepers over those technologies grants them tremendous cultural and economic power. Clashes over Net Neutrality are at the center of debates and political action determining who wins and who loses in the new media era.

What is Net Neutrality? Simply stated, it is the principle that Internet service providers (ISPs) should have limited means for prioritizing data that travels over the Internet. Before analyzing the debate, we can stipulate three fundamental starting points:

  1. No single entity (fully) runs the Internet;
  2. Americans are deeply divided about governmentally imposed media regulations; and
  3. Americans disagree as to whether the Internet is a right or a privilege.

No One Runs the Internet
The United States works with governments, organizations and partners worldwide to ensure the Internet functions properly. Dozens of entities at multiple levels cooperate to establish Internet standards and deliver Internet services. For example, ICANN (Internet Corporation for Assigned Names and Numbers) coordinates the Internet’s system of unique identifiers, such as IP addresses, and the W3C (World Wide Web Consortium) creates standards for how the web operates.

But in some ways, businesses that provide the pipes, wires, cables, connections and hardware/software infrastructure play a bigger role in running the Internet than governmental or quasi-governmental agencies. In effect, no one is really in charge; the Internet is “run” via a vast network of cooperating partners. Because no single entity exerts control over all aspects of the Internet, no single entity can set all the rules for how it works.

Part of the wrestling match over Net Neutrality has to do with whether the Federal Communications Commission has (or should have) such regulatory authority. After the D.C. Circuit Court of Appeals ruled in 2014 that the agency did not have said regulatory authority over the Internet, the FCC redefined the Internet as a telecommunications service (a common carrier), which brought the Internet under its purview.

Under current leadership, the FCC is rolling back that arrangement by declaring that the Internet is an “information service,” thereby forbidding it regulatory control, including exclusion from imposing Net Neutrality on the marketplace. If the FCC pulls back that mandate, no U.S. governmental agency will have clear regulatory control over the Internet. While some maintain that the Federal Trade Commission plays a role, the FTC is essentially limited to protecting consumers from fraud or product danger. These actions can regulate some Internet-based activities, but are far from regulating the way the Internet operates.

Divided Over the Role of Government
For a wide variety of reasons, many Americans do not approve of the federal government regulating media industries. While on the one hand, Net Neutrality seems to be supportive of the general population—rather than providing special entitlements to societal segments—enacting consumer protections always entails monitoring and regulation. These features, however, are not familiar aspects of the American media landscape. The government has historically provided very light regulation of television, radio, newspapers, print publications, etc. So why should the Internet receive more heavy-handed governmental control?

Regulations would be required to enact Net Neutrality in the U.S. and Americans are divided over this. Some believe regulations can provide necessary consumer protections and controls over predatory practices. Others hold fast to the belief that regulating media industries unnecessarily stifles innovation by limiting profits and investments. Regulation also has constitutional implications: If one wants to grant First Amendment protections to traditional news outlets (say, The New York Times), the same protections extend to the Facebook news feed. We don’t regulate column width at the Times; perhaps we should not regulate how AT&T manages bandwidth.

An additional consideration is that communication industries tend toward monopoly, and new media has been no different. Defining the Internet as a public utility, or common carrier, would provide the government tools (in addition to antitrust legislation) against predatory and/or monopolistic practices. Holding the government to a “hands-off” approach tends to encourage media consolidation, resulting in outfits that resemble monopolies (even if they don’t fit the exact legal definition). A quick glance at the current environment—in which Comcast and Charter control massive amounts of the broadband cable business, and Facebook, Amazon and AT&T control network services and maintain massive server farms and infrastructure—reminds us that new-media monopolization did not begin or end with Microsoft.

Access to broadband services provides a particularly cogent illustration of the tensions between regulation and free enterprise, as well as between private profit and public services. The ISPs have long waged political warfare against communities that seek to provide broadband services as a public good. They argue that the government should not provide media services and that doing so competes unfairly with corporate interests (and in some cases violates legacy contracts that granted cable systems decades worth of television service monopolies).

But if the Internet is an important public good, why should local governments be forbidden from providing access—especially for citizens who can’t afford commercial services? To date, the ISPs are winning this war, such that few communities are able or allowed to provide broadband access, even if they might be able to do so at a cost savings to their citizenry. The digital divide is alive and well in the U.S., despite the innovation and market agility claimed by the telecoms.

The Internet: Right or Privilege?
There is no broad consensus among Americans as to whether the Internet is a right or a privilege. Some countries have moved to classify the Internet as a public utility; others resist this position. One can debate the efficacy of declaring the Internet a public utility with regard to the potential for future innovation. Perhaps the private marketplace will be more innovative without the challenges presented by large public utilities. On the other hand, perhaps innovation is stifled when large corporations are given control over aspects of the market that might be better if developed as a public resource.

Who’s On First?
Who, then, is for Net Neutrality, who opposes it, and why? As you can see, the landscape is complex and sometimes contradictory. Let’s examine some illustrative analogies.

The Public Utility Model
As public utilities—for example, in the case of water and electricity—providers charge customers for the total amount of water and electricity used. These providers do not know much about whether consumers use water and electricity quickly or slowly, let alone the purposes to which their usage is put. Advocates of Net Neutrality may prefer this model, as it entails neither usage monitoring (beyond measuring total usage and/or bandwidth speeds) nor resource throttling (lowering bandwidth based on specified usages, content or timeframes).

Yet there are fundamental differences between providing water or electricity, and the Internet. In the case of water and electricity, generally speaking, your use does not degrade your neighbors’ use. With Internet access, however, there are circumstances in which heavy use by one user degrades the quality of service available to others. From this perspective, providers would like to protect their networks from overuse by “power users,” charging them not only for their total usage, but constraining them from (or charging them additionally for) degrading overall system capacity and thereby the services of others.

In addition, providers would sometimes like to be able to detect users involved in illegal activities, such as downloading copyright-protected content. Monitoring and throttling helps ISPs mitigate some of these unwanted user behaviors.

The Service Level Model
A second model is analogous to cable television, in that consumers choose levels of service at various price points. This model is appealing because it enables providers and users to negotiate levels of usage with matching price frameworks. This arrangement appears to meet some of the needs of both sides of the issue, in that users determine the capacity for which they pay, and ISPs do not touch the content within those tiers. However, this model works against the general principle of Net Neutrality in that it may lead to the development of high-end bandwidth services targeted at only those who can afford it while denying quality service to those who cannot.

Further, this model threatens to revalue the entire Internet based on the corporate priorities of enormous commercial players. Industry consolidation has combined with governmental deregulation to produce media giants with ownership holdings across vast segments of the media industries. For example, Comcast’s ownership of NBCUniversal may well tempt them to direct higher bandwidth for NBCU programs than for, say, movies from Netflix, thereby violating Net Neutrality in ways that appear to provide no quality improvements for customers, while providing an unfair competitive advantage to Comcast, in the context of no governmental regulatory ability to protect consumers.

The Sides
Generally speaking, ISPs do not like Net Neutrality. Verizon, AT&T, Comcast and others have lobbied and litigated in opposition to governmental involvement in the business of providing or regulating Internet access and bandwidth to consumers. Consumer advocacy groups and others seeking protection from corporate market dominance prefer Net Neutrality.

In addition, privacy advocates and civil libertarians tend to prefer Net Neutrality because ISPs have to monitor usage in order to throttle service. This means that unregulated, non-neutral ISPs are more deeply involved in looking at content than they are comfortable with. Establishing Net Neutrality would lower the needs for usage monitoring on the part of ISPs.

Summary and Recommendations
A strong case can be made that the new media environment is now dominated by a relatively small number of enormous, highly influential corporations. Regardless of how innovative they seem and how wonderful our new media lives appear to be, growing the Internet behind the back of federally-mandated consumer protections and regulatory controls appears to have produced a lot of wealth for a few communications giants while delivering a less-than-robust Internet for Americans as a whole.

For example, in 2015, the digital traffic company Akamai ranked the U.S. Internet as only the 17th speediest in the world. It noted that in 2014, 100Mbps Internet was available to just 59 percent of the U.S., while as late as 2016, 16 million Americans still did not have wired broadband access. In other words, our “hands-off” regulatory approach has resulted in neither a robust, nor fully public, Internet infrastructure.

While mandating Net Neutrality may not be the best solution for addressing the digital divide, it is increasingly difficult to argue persuasively that unregulated commercial and corporate leadership are the best approaches to providing robust Internet services to the majority of U.S. citizens. iBi

Ed Lamoureux, Ph.D is a professor in the Department of Interactive Media and Department of Communication at Bradley University. He is the author of Privacy, Surveillance, and the New Media You (Peter Lang Publisher, 2016).

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