Net Neutrality: It’s Kind of a Big Deal

It’s rare when people of seemingly disparate political ideologies can agree on issues. During a health care debate hosted by CNN some months ago, Sens. Bernie Sanders and Ted Cruz remarked about their mutual support for a piece of legislation that, if passed, would have allowed Americans to import prescription drugs from Canada and pay less than they otherwise would. (New Jersey residents, if you’re wondering how your senators voted on this measure, they both voted against it—among only a handful of Democrats to do so—and yes, they should be duly admonished.) On a related note, and as evidenced by recent doings in Congress and angry constituents showing up to town halls, Americans—call them crazy—don’t like when you f**k with their health care. I know it seems strange, but generally speaking, people choose to, um, not die. Accordingly, while Republicans in the House may have narrowly squeaked through the latest iteration of the American Health Care Act, a demonstrably shitty replacement for the Affordable Care Act, and though nothing has been decided yet, GOP senators, assuming they are for the AHCA in the first place, will be hard-pressed to secure the necessary support for this piece of legislation.

Another issue that unites both liberals on the left and trolls on the far-right is net neutrality, something which seems to be relatively low on the list of priorities for people either for, against, or ambivalent to the Trump administration’s agenda, but concerns all of us who use the Internet, and therefore concerns pretty much all of us. Net neutrality relates to the speed of delivery of content across Internet service providers (ISPs) and the conduits of that content (Amazon, Google, Netflix, etc.). Though it’s more complex than this alone, one way of thinking about this concept is considering the notion of whether or not big cable companies like AT&T, Comcast, Time Warner Cable, Verizon, and other ISPs should be able to speed up or slow down service to companies based on whether or not these companies pay more to be able to deliver content to you. In essence, without rules that promote a “free and open Internet,” cable providers can play favorites with who gets superior service and at what cost. Of course, representatives from the ISPs would insist that they would never take advantage of reduced restrictions on their ability to modulate rates. Cable, Internet, and phone companies—paragons of virtue, they are.

Between the Federal Communications Commission (FCC), the telecom giants, and prominent Web companies, there has been much debate and litigation with respect to how to legally classify the services that ISPs offer under the laws of these United States. Though, as most on both sides of the net neutrality debate would argue is not ideal, the extent of the control the FCC has over broadband service providers is governed by the Communications Act of 1934. Seriously. Under this statute and as modified by the FCC’s 2015 Open Internet Order, broadband Internet falls under Title II of the Communications Act, and any provider of broadband connections is thereby is considered a “common carrier” and subject to the same kinds of constraints that telephone service is.

As far as we end users are concerned, this is a good thing. Yosef Getachew, writing on behalf of Public Knowledge, an organization devoted to access to affordable communications tools and creative works, freedom of expression, and an open Internet, working to shape policy on behalf of the public interest, outlines the major benefits of the Title II classification for broadband. Alongside clearly establishing rules against blocking websites and discriminating service, Getachew identifies two advantages to the consumer for listing broadband as Title II. The first is universal service. Section 224 of the Communications Act ensures that broadband service providers, including wireless carriers, have access to utility poles, the existing infrastructure essential to available broadband access. In addition, Section 254 of the Act establishes subsidies both for companies that adopt and deploy telecommunications services—specifically to promote this universality of access. With Title II classification for broadband established, the FCC expanded what is known as the Lifeline program, which provides subsidies for low-income Americans using telephone and broadband, as well as those service providers who offer such services to low-income families and individuals. Thus, without Title II classification, access to those subsidies could be curtailed. But whatever, right? Poor people are used to not having stuff.

The other major advantage of Title II classification is privacy. Privacy of information—what is this nonsense? Section 222 of the Communications Act of 1934, meanwhile, pertains to the requirement of telecommunications providers to safeguard customer proprietary network data, a provision which was, as is the running theme, extended to broadband providers. Specifically, providers were barred from tracking customers online without their permission. That’s right—they were until Donald Trump got sworn in and signed into law a dismantling of these protections pursuant to a resolution passed by Congress. Thanks, President Trump! Thanks, GOP! I didn’t like my privacy anyway! What makes things worse is that the Broadband Privacy Order makes it so that the FCC can’t enact similar privacy protections in the future. In other words, Trump and his fellow Republicans are proverbially salting the earth when it comes to the sanctity of your online habits and your personal information. All your data are belong to us.

Despite this blatant screwing with Obama-era regulations, as Yosef Getachew explains, the Title II classification for broadband still furnishes the FCC and end users with a framework to enforce privacy. Going back to Section 222, consumers can file grievances with the FCC in accordance with “egregious” behavior on the part of ISPs with respect to their data, and the FCC can bring enforcement actions in line with this language of the law. Section 222 also allows the FCC to issue guidelines to service providers to protect consumer information, as well as empowering the Commission to create new privacy rules in the future—though, as discussed, they can’t be “substantially similar” to the regulations just rolled back by Pres. Trump. Getachew even goes into the protections of Section 201 (requires providers to disclose data caps, service charges, and other allowances, charges, and fees) and Section 255 (ensures equitable access for people with disabilities). As it would therefore appear, all hope is not lost.

As is evident from Getachew’s observations, however, much is dependent upon distinguishing ISPs as “common carriers” under Title II, and he acknowledges this in no uncertain terms:

Title II classification is critical for protecting an open internet, but it is also just as important for preserving our values of service to all Americans, including universal service and consumer protection. Broadband has the power to transform people’s everyday lives. Title II classification of broadband must remain in place to continue protecting the fundamental values of our communications systems.

“Broadband has the power to transform people’s everyday lives.” That’s a profound statement, and one I believe very much to be true. How much have our lives changed since the advent of smartphones, tablets, and computer connections that don’t require a 56K dial-up connection and an AOL starter disc? Before I sound like too much of an elitist prick, it’s worth noting that upwards of 2 million Americans still use dial-up technology to access the Internet. More advanced methods require the investment in broadband infrastructure, but in rural areas, that simply hasn’t happened yet, and for yet other consumers, the price of a broadband connection is simply too high. So, if you’re my age and discussion of dial-up conjures images of AIM conversations with screen names that reference Linkin Park and Papa Roach, or completing homework assignments with the assistance of Encarta Encyclopedia, consider that for a small but significant portion of the United States, what may be fond if slightly embarrassing memories for some may be a present reality for others.

So, now that we’ve set the scene, let’s get down to brass tacks. Anything that might stand in the way of a free and open Internet—and an affordable, available, and safe Internet, at that—could be seen as a drain on people’s quality of life, and put them at a serious disadvantage compared to those who can afford to pay more for better service. It’s sort of like, for instance, drug prices, which spike to obscene levels at the seeming whim of pharmaceutical companies, or perhaps health care, which is being assailed at all angles by GOP lawmakers all for the sake of giving the very rich tax cuts. As the gap in our country widens between the poor and rich and threatens to swallow the middle class whole, coverage—whether in terms of health insurance or access to a reliable broadband network—is also threatened for more and more Americans should the playing field become not so level.

Enter Ajit Varadaraj Pai, Donald Trump’s recently appointed chair of the Federal Communications Commission. Like many of Trump’s appointees for positions of import, Pai’s nomination seems to be a direct slap in the face to those who voted against him and are not, well, an unfeeling corporation. Essentially, Ajit Pai is to the FCC what Betsy DeVos is to education reform and what Scott Pruitt is to not strangling baby condors to death with one’s bare hands. First things first, Pai used to be a lawyer for Verizon, an aforementioned member of Big Cable and probably the foremost anti-neutrality corporate entity among them. If you are concerned that he might therefore be biased toward the telecommunications giant and its ilk, don’t worry—he is exactly as biased as you would imagine.

Ajit Pai fits in well with the “no regulation is a good regulation” outlook of the Trump administration at large. As a member of the FCC prior to becoming agency chair, he voted against the Open Internet Order, and remarked as recently as December of 2016 that he believed net neutrality’s “days are numbered.” He defends the free speech of Internet service providers, and by association, regards attempts to minimize their rights in this regard as part of a “dangerous” effort to derail the “culture of the First Amendment.” Since becoming chair, moreover, Pai has resisted efforts to cap prices on phone calls for inmates in prisons and jails, which can exceed $50 a call depending on length, closed an investigation into AT&T, T-Mobile, and Verizon regarding the fairness of zero-rating services, and has prevented nine carriers from offering discounted rates to low-income families. When asked about Ajit Pai within his new function, Matt Wood, policy director for the consumer group Free Press, pulled no punches: “With these strong-arm tactics, Chairman Pai is showing his true stripes. The public wants an FCC that helps people. Instead, it got one that does favors for the powerful corporations that its chairman used to work for.”

Essentially, everything Ajit Pai has done so far has been to help the bottom line of big telecom companies/ISPs at the expense of the consumer. Noting Matt Wood’s comments, and speaking specifically to the core concept of net neutrality, Pai’s actions make sense because A) he is a Republican, and Republicans love catering to big businesses, and B) because Big Cable, comprised of big monopolistic businesses, thinks this way. Though outdated to the extent it does not reflect the changes set forth by the 2015 Open Internet Order, Mike Masnick, writing for Techdirt, penned an excellent primer for understanding net neutrality and the sides of the debate. In explaining the prevailing position of Big Cable, Masnick highlights the vague surreality of their argument, which, at best, is faulty logic, and at worst, blatantly greedy. Here’s an excerpt from the article, which takes the form of a mock Q&A:

[responding to “What is net neutrality?”] The internet access providers claim that service providers, like Netflix and Google, are getting a “free ride” on their network, since those services are popular with their users, and they’d like to get those (very successful) companies to pay.

Wait, so internet companies don’t pay for bandwidth?

They absolutely do pay for their bandwidth. And here’s the tricky part of this whole thing. Everyone already pays for their own bandwidth. You pay your access provider, and the big internet companies pay for their bandwidth as well. And what you pay for is your ability to reach all those sites on the internet. What the internet access providers are trying to do is to get everyone to pay twice. That is, you pay for your bandwidth, and then they want, say, Netflix, to pay again for the bandwidth you already paid for, so that Netflix can reach you. This is under the false belief that when you buy internet service from your internet access provider, you haven’t bought with it the ability to reach sites on the internet.

The big telcos and cable companies want to pretend you’ve only bought access to the edge of their network, and then internet sites should have to pay extra to become available to you. In fact, they’ve been rather explicit about this. Back in 2006, AT&T’s Ed Whitacre stated it clearly: “I think the content providers should be paying for the use of the network – obviously not the piece for the customer to the network, which has already been paid for by the customer in internet access fees, but for accessing the so-called internet cloud.” In short, the broadband players would like to believe that when you pay your bandwidth, you’re only paying from your access point to their router. It’s a ridiculous view of the world, somewhat akin to pretending the earth is still flat and at the center of the universe, but in this case, the broadband players pretend that they’re at the center of the universe.

Or, for the sake of another metaphor, the ISPs want to have their cake and eat it, too. Just in case you’re not convinced by the musings of Josef Getachew and Mike Masnick, or the general douchebaggery of Ajit Pai, consider what the absence of an open and free Internet might entail relative to how cumbersome dealing with our telecommunications overlords is with respect other similar utilities. With cable TV, there are all sorts of premium packages that providers try to get you to sign up for, replete with tons of channels you don’t really want to watch. Mobile phones and dealing with the companies that furnish them also can be a minefield of hidden fees, data caps, overages, and the like, and this assumes you understand how the underlying technology works and what exactly you’re getting when you sign your name on the dotted line. The end of net neutrality means ISPs can devise new ways of charging more for basic access and additional services, and can all but force you to use programs and services that they create or those authored by companies with which they have specific ties. And talk about free speech—for all the worry expressed by Mr. Pai about the First Amendment protections offered to big corporations, dismantling net neutrality rules would swing the pendulum in the other direction. In all, not only could Internet use become that much more problematic and agonizing for end users, it likely would prove more costly and restrictive on top of that.

So, will the Trump administration and FCC chair Ajit Pai act to back broadband services out of Title II of the Communications Act and more or less eviscerate net neutrality? Almost certainly. Does that mean, consequently, that we are powerless in this regard? Well, let me put it this way: if we’re going to go down, we might as well go down swinging, or more accurately, making a ruckus about it. First of all, while I have given you a rudimentary synopsis of the battle for net neutrality, it behooves you to get that much more informed. Fight for the Future has put together a really good collection of links to informational resources at battleforthenet.com. Also, consider donating to Fight for the Future, Free Press, and other organizations specifically oriented to preserving net neutrality. Lastly, and most importantly, make your voice heard. In addition to the myriad petitions in circulation across the Internet, John Oliver has publicized the URL gofccyourself.com, which links directly to the official FCC website and allows you to “Express” a public complaint on the matter of “Restoring Internet Freedom.” At this writing, over 735,000 filings had been made on behalf of Americans who support net neutrality and don’t want the Internet to become another utility by which corporations can decide winners and losers. If that happens, we all lose.

Net neutrality—it’s kind of a big deal. And it’s something about which you should be decidedly un-neutral. Don’t let Big Cable destroy the free and open Internet—certainly not without a fight. As it bears repeating, if people on the left and right can agree on the value of net neutrality, you know it must be worth something.