The ongoing U.S. struggle for
net neutrality

by Lyell Davies

Most of the time, decision-making about U.S. communications policy takes place without scrutiny by the general public. Not so in 2017 when, reversing this tendency, Internet net neutrality became the focus of widespread public attention, leading to mass popular organizing and activism on its behalf. The unprecedented scale of this effort indicates the presence of a growing and ever more active communications-policy focused movement in the US. The concept behind net neutrality is simple. It means that when we go online we can search for and freely find whatever we seek, without broadband ISPs such as Verizon, Comcast, Time Warner Cable, or AT&T having the ability to decide what content is available to us, or to favor some content while slowing the delivery of others. Since its widespread adoption of the Internet by the U.S. general public during the 1990s, the concept of net neutrality has been broadly embraced, and the Internet has, for the most part, been operated in a way that upholds it.

But over the years, broadband ISPs have not been required to uphold net neutrality on their networks. As new ways to monetize our Internet use are being developed by social media companies and other business interests, the absence of net neutrality rules offers broadband ISPs ways to create new revenue streams for their businesses at the expense of Internet users’ experiences. It was therefore of far reaching importance that in February 2015 the U.S. Federal Communications Commission (FCC) introduced Open Internet rules that mandate net neutrality; a move that The New York Times called “perhaps the biggest policy shift since the Internet became a reality” (Weisman 2015). The FCC’s 2015 decision did not come out of thin air. The issue had been debated and contested by policy makers, ISPs, and communications rights activists for over a decade. More pointedly, the ruling came about in response to a mass popular mobilization in favor of net neutrality, driven by communications rights and consumer organizations, Internet edge providers,[1] [open endnotes in new window] and millions of engaged Internet users.

Even before President Donald J. Trump’s inauguration, communications rights advocates began to prepare for a new round in the fight for net neutrality. Trump offered no coherent stance on communications policy during his presidential campaign, but for policy observers the position his administration would likely take seemed clear. Clues included his opposition to government regulation of industry, as well as the fact that the 2015 ruling was backed by the Obama Administration—making it a likely target for repeal within the partisan culture war of present day U.S. politics. Following his inauguration, Trump promoted Republican FCC Commissioner Ajit Pai to serve as the commission’s chairman. A former Verizon lawyer, from the outset Pai stated that he sought to repeal the FCC’s Open Internet rules (The New York Times 2016, December 16). In response, communication rights activism surged in 2017 as millions of people sent emails or placed calls to regulators or elected officials, met with representatives, attended rallies, or took to the streets or sidewalks in protest.

The effort provides an important illustration of a popular mass mobilization targeting U.S. communications policy—the government rules that regulate media and communication industries. Efforts of this kind are not new to U.S. life, and antecedents for current communications activism can be found in the radio reform movement of the 1920s and 1930s, or in civil rights era campaigns to make broadcasters accountable to communities of color. But the scale of the 2014-2015 and 2017 net neutrality mobilizations are unsurpassed in scale in the history of U.S. communication rights activism. These efforts demonstrate that mass public engagement with communications policy is possible, and suggest a growing public expectation that electronic media communication, which has so deeply penetrated every aspect of our lives, should serve democracy and justice rather than undermine it.

On the eve of the FCC’s 2015 ruling, advocates for net neutrality rally outside the Time Warner building in New York City, 23 February 2015.
[Photo courtesy of Media Action Grassroots Network.]

In the account that follows I briefly describe what is at stake with regard to net neutrality and an open Internet. Drawing on the work of Internet scholars and theorists, I consider what the Internet could become if net neutrality ceases to exist. I then place the present struggle for net neutrality in an historical context by describing some of the antecedents for the present mobilization, as well as how communications activism in the U.S. has been on an upswing for the last two decades. Finally, I provide a sketch of the character of the mass popular mobilization that came together in support of net neutrality and an open Internet during 2017.

At a “Net Neutrality Victory Rally” outside the FCC in Washington D.C. on 26 February 2015, advocates for net neutrality celebrate the imminent vote to pass strong net neutrality rules under Title II of the Communications Act.
[Photo courtesy of the Free Press/Free Press Action Fund.]

What’s at stake?

The term net neutrality was coined by Tim Wu to describe a condition where all content carried on the networks operated by broadband ISPs is treated the same way (2003). With net neutrality in operation, users can go where they want on the Internet, entrepreneurs are free to make new products or services available over the Internet, and broadband ISPs are not allowed to favor any particular Internet traffic. As Tim Berners-Lee, the inventor of the World Wide Web, argues,

“Net neutrality maintains that if I have paid for an Internet connection at a certain quality, say, 300 Mbps, and you have paid for that quality, then our communications should take place at that quality. Protecting this concept would prevent a big ISP from sending you video from a media company it may own at 300 Mbps but sending video from a competing media company at a slower rate. That amounts to commercial discrimination... What if your ISP made it easier for you to connect to a particular online shoe store and harder to reach others? That would be powerful control. What if the ISP made it difficult for you to go to Web sites about certain political parties, or religions, or sites about evolution?” (2010:84).

Internet innovator Vinton Cerf argues that from the outset the Internet’s great success has been its openness. He argues, “The Internet was designed to maximize user choice and innovation, which has led directly to an explosion in consumer benefits;” its design “allow for the decentralized and open Internet that we have come to expect” (Cerf 2006, February 7). The FCC’s 2015 Open Internet ruling, states:

“Any person engaged in the provision of broadband Internet access service… shall not unreasonably interfere with or unreasonably disadvantage (i) end users’ ability to select, access, and use broadband Internet access service or the lawful Internet content, applications, services, or devices of their choice, or (ii) edge providers’ ability to make lawful content, applications, services, or devices available to end users” (FCC 2015, March 12: 9).

As an issue, net neutrality pits two competing views of the role of communication in our society, and the conduct of communication industries against each other. On the one side, there is a corporatist belief that the communications arena is a business like any other, and that media companies are experts on what is best for their industry so they should be left to run it as they see fit with minimal government regulation or public oversight. After all, so this argument goes, the public uses the services these corporations provide, so the public interest must be being served. On the other side, there is the belief that an ability to communicate and access information is an integral feature of the life, and should not be left entirely in the hands of self-interested, for-profit corporations. In the United States, opposition to corporate control of communications is commonly articulated in relation to democratic processes, with the argument made that the free circulation of diverse ideas and opinions is the lifeblood of a democracy.[2] This view has been championed by the nonprofit organizations engaged in the struggle for net neutrality. Drawing on deep expertise regarding the role of communications in society, these organizations identify communication rights as a necessary precondition for the exercise of the rights enshrined in the U.S. Constitution, informed participation in public life, and the attainment of social equality and justice.

Many precedents exist for net neutrality. New York State statutes for the operation of the telegraph from 1848 require that telegraph companies transmit all messages “with impartiality and good faith”, and “in the order in which they are received” (Nonnenmacher 2001:34). Railroads, pipelines, and shipping companies have been governed by similar ‘common carrier’ rules. Present day telephony offers a contemporary illustration of common carrier in operation. When an individual places a phone call, the telephone company must link the caller to the number they have dialed, not send them to another destination or interfere with what is said during the caller’s conversation. This is much like Internet net neutrality. Broadband ISPs provide a network for carrying content to users, and with net neutrality rules in place they cannot interfere with that content. Indeed, the 2015 ruling for an open Internet designated broadband ISPs as a ‘telecommunications service’ under the FCC’s Title II rules, which govern phone calls.

In many countries, government rules require net neutrality, and the high level of public engagement on the issue suggests that the concept is widely favored by the U.S. public. While some conservative news sources have tried to paint net neutrality as a ‘liberal’ issue (Varadarajan 2017, May 19), the free speech principles that net neutrality upholds can be seen as benefiting all people in the United States, irrespective of their political views. With some notable exceptions,[3] up to the present broadband ISPs have generally operated their networks in a manner that upholds net neutrality, but they were not required to do so until the FCC’s 2015 ruling. This has led net neutrality’s critics, including FCC chairman Pai, to argue that this regulation is a solution to a problem that doesn’t exist (FCC 2014, February 19). Further, Pai argues that the 2015 rules stifled investment in broadband and the deployment of new services by ISPs. His critics refute these arguments, arguing instead, “online investment and innovation boomed with those protections firmly in place” (Free Press 2017, December 14). Pai has commonly stated that the Title II rules that underlie the FCC’s Open Internet ruling are out-of-date, “Depression-Era regulations" unsuited to the digital age (Reardon 2017, February 7). The techno-determinism that underlies this argument ignores that the intent of earlier FCC rulings may be as valid today as they ever where, since the values that underlie U.S. democracy do not change with the coming or going of particular communications platforms.

For people who struggle to understand what the Internet might become if net neutrality becomes a thing of the past, key Internet thinkers offer insight. Lawrence Lessig and Robert W. McChesney argue that without net neutrality the Internet will become a more curated environment, with broadband ISPs and other moneyed interests deciding what’s available to users. They state:

“Without net neutrality, the Internet would start to look like cable TV. A handful of massive companies would control access and distribution of content, deciding what you get to see and how much it costs” (Lessig & McChesney 2006, June 8).

On this theme readers of Jump Cut should be mindful that this free and readily accessible online journal is a small not-for-profit edge provider of a kind that could become less accessible (or even inaccessible) in a pay-as-you-go, post-net-neutrality world. The politically engaged readership of the journal will also know that the organizations or social movements they support or belong to rely on an open Internet for information sharing, to support organizing efforts, and to mobilize constituents towards action. As media justice advocates Malkia A. Cyril and Joe Torres argue,

“[P]rotecting the Net Neutrality rules that keep the internet open is more critical than ever. As authoritarianism rises, digital free speech can ensure our opposition to authoritarianism also rises” (2017, March 16).