What happened? Why now?
Over the last five years, telecom giants including AT&T, BellSouth, Comcast, Qwest, Sprint, Time-Warner, and Verizon have spent well over $100 million lobbying Congress and the FCC to eliminate established Net Neutrality protections. In 2002, the network providers convinced the Federal Communications Commission (FCC) to abandon consumer protections by reclassifying cable modem services as unprotected information services instead of protected communications services. Then in 2005, the Federal Communication Commission (FCC) suddenly repealed longstanding Internet non-discrimination principles with the blessing of the United States Supreme Court.
The Internet was born and flourished under well-established Net Neutrality protections. These protections are derived from Title II of the Communications Act of 1934, which grants the Federal Communications Commission (FCC) the authority to regulate telephone companies as common carriers. As computer technology was developed, data began to flow over telephone lines. In the 1970s and 1980s, the FCC responded by ensuring that network providers would provide access for data transmissions on a non-discriminatory basis by protecting them like other communications services. Title II was strengthened by making common carrier telephone networks available to independent equipment manufacturers and Internet Service Providers (ISPs).
All of that suddenly changed in June 2005 with the Supreme Court’s decision in NCTA v. Brand X. In Brand X, the Supreme Court for the first time found that broadband access constituted information services. The Court concluded that the FCC had discretion to choose whether to retain Net Neutrality protections for all broadband users. Shortly after the Brand X decision, the FCC further curtailed Net protections by reclassifying Digital Subscriber Line (DSL) services as information services. Within a span of a few months, the FCC and the Supreme Court managed to destroy decades of Net Neutrality protections for nearly every American.
The assault on Internet freedom will only get worse. Although the FCC imposed Net Neutrality protections in merger agreements for certain network providers such as SBC/AT&T and Verizon/MCI, those protections expired in 2007. In July 2006, the FCC declined to include any Net Neutrality protections in Comcast and Time-Warner’s acquisition of Adelphia Cable. The FCC is expected to follow a similar pattern of opposing Net Neutrality in the future, as network providers continue to consolidate into an even smaller pool of Internet gatekeepers. Without Net Neutrality, network providers are free to discriminate.
Although the telecoms and cable companies offer the public gateways to the Internet, they are not considered “state actors” that trigger free speech protections under the First Amendment. Therefore, they can effectively shut down the 21st century marketplace of ideas by screening Internet e-mail traffic, blocking what they deem to be undesirable content, or pricing users out of the marketplace. Historically, Net Neutrality protections under the Communications Act filled the free speech gap. Since those protections were removed, nothing prevents network providers from discriminating against Internet users and application and service providers in terms of content, quality of access, and choice of equipment.
In 2006, big network providers censored lawful content and blocked their Internet competitors:
- Time Warner's AOL blocked all emails that mentioned www.dearaol.com, an advocacy campaign opposing AOL’s pay-to-send e-mail scheme.
- BellSouth blocked its customers’ access to MySpace.com in Tennessee and Florida.
- Cingular Wireless, run by AT&T, bars access to PayPal to make a payment on eBay because it has struck a deal with another online payment service, which pays Cingular for that privileged status.
The big telecoms and cable companies have been on their best behavior while Congress is considering legislation that would reinstate longstanding nondiscrimination principles on the Internet. Despite this heightened scrutiny from Congress, network providers have engaged in content and user discrimination. Their discrimination will only increase if Congress does not immediately restore strong Net Neutrality protections.
