Net Neutrality and the Battle for the Open Internet

Front matter

NAAPA W A10

NET NEUTRALITY AND THE

BATTLE FOR THE OPEN INTERNET

Contents

Acknowledgments

List of Illustrations

INTRODUCTION: ‘The Broadband Battle

Introduction

The Broadband Battle

The line of police faces the crowd of protesters. Armed with military-grade weapons, body armor, and shields, the SWAT team advances on the mass of young people of color in the streets, step-by-step, boxing them in. Suddenly there is tear gas in the air, dispersed by police into the crowd without warning. As the scene erupts into chaos, police shoot rubber bullets at the scrambling protesters. You are watching it all happen live, thanks to people with a connection to the open internet.

Mustafa Hussein was live streaming from the streets of Ferguson, Missouri, in late summer 2014, documenting the uprising sparked by the police murder of Mike Brown, and the militarized police response, which became a defining moment in the rise of the Movement for Black Lives and a new generation of racial justice activism. Hussein was just a graduate student in the area who became the reason many across the country were aware of what was happening in Ferguson, when the mainstream media was nowhere to be found. The night he was hit by a rubber bullet while fleeing tear gas, he kept streaming while 1.2 million people watched it all live, equaling a good prime-time rating for CNN. Days of police suppression of dissent in Ferguson went ignored by major publications and news networks until citizen journalists reached the nation through online media. When professional reporters did show up, police hounded, threatened, and even arrested them. Roadblocks had kept satellite television trucks from getting close to the action, leaving everyday people’s internet live streams the only way to see events unfolding on the ground at this early stage.'

Everyday people like Mustafa Hussein were able to raise alarm about injustice, without the mainstream media, because there were conditions in place for democratic communications. There was a technological system— not only the mobile devices and cameras in their hands but also the unseen electromagnetic waves, fiber-optic cables, switches, and servers—equipping anyone to transmit openly to anyone else. The companies that control access to this infrastructure did not interfere with the traffic to and from the internet: Verizon did not throttle Hussein’s 4G signal, Comcast did not block its users from watching it, AT&T did not have a paid partnership to prioritize live streams from Facebook over Lifestream, the small start-up app that Hussein was using. He and the other regular people who showed Ferguson to the world expected that when they connected to the internet, what they streamed, tweeted, posted, and uploaded would reach those on the other side of the network. As of about six months prior, though, they no longer had legal protection for these affordances. Policy prohibiting discrimination on broadband internet had been struck down by a federal court, leaving all of these enabling supports fragile.

The internet has been praised for democratic possibilities, but it is not natural, coincidental, or inevitable for the internet to be open. It was a choice for an internet connection to not privilege one way of using it over another, and it is a choice people collectively face whether the open internet will continue or not. Internet traffic flows fairly and equitably only if those governing the network abide by the principle that they should not discriminate. The internet is free and open because of net neutrality. This book is about the fight from 2002 to 2017 over whether net neutrality will remain in the United States.

“Net neutrality,” a dry but crucial standard of openness in network access, escalated from a technical principle informing obscure regulatory debates to become the flashpoint for an all-out political battle for the future of communications. As the fight over net neutrality spilled out from cloistered boardrooms and arcane regulatory files and into the public arenas of political struggle—online, in the media, and in the streets—it became a rallying cry with surprising and consequential effects for the shape of media industries, digital culture, and the public sphere. At stake in the struggle over net neutrality have been two very different visions of the digital future: Should the internet be a public resource for anyone to use to connect without structural advantages, or should it be a private delivery system for the services of big corporations? Since 2005, people in the United States have demanded that broadband providers not interfere with online content and services and that access to the internet remain open, without favor or discrimination, while powerful broadband providers fought to consolidate and exploit their control over internet access. After a decade-long political battle, in 2015 the US government implemented strong net neutrality regulations, but in 2017 these rules were undone and the struggle began anew.

This book traces a critical cultural history of net neutrality. In it I examine the policy and politics of net neutrality in the United States from 2002 to 2017 in order to ask what the net neutrality debates reveal about media regulation, industries, and advocacy in the internet age. This analysis is limited in scope to the United States, focused on the debates in and around the Federal Communications Commission (FCC) in its Open Internet rulemaking proceeding and the cultural, economic, and political implications.

Through critical analyses of texts from policy proceedings and popular culture alike, along with interviews with participants, this book shows how media activists and everyday people were able to challenge the power of the telecommunications industry that historically dominates such policymaking, as well as the compromised tech corporations that sought to coopt the issue, to win a significant victory for media democracy (although its final resolution remains on hold). Enabled by the same open networked structures that they sought to protect, media democracy advocates mobilized millions of people through creative online/offline, insider/outsider organizing techniques and discourses of equality and justice to push net neutrality forward despite operating on a playing field steeply tilted by corporate power and influence.

Net neutrality enjoyed a moment in the spotlight beginning in 2014, garnering much attention in political circles, media coverage, and popular culture, in addition to a great deal of academic research. And yet, with many larger issues running underneath these events, there remains much yet to be explored.’ Studies and academic discussions of net neutrality have been dominated by traditional legal, economic, and technical perspectives, but humanities-based critical theoretical approaches to net neutrality remain underdeveloped. Full book-length treatments of net neutrality remain rare and tend to represent legal, economic, or technical points in the debate rather than books about the debate itself.’ This book offers an in-depth and theoretically grounded history in order to record this important moment and make sense of what has happened through a critical lens. The net neutrality story told in this book is meaningful not just because of the monumental significance of the specific policy outcome but also because of what was revealed along the way about how media industries, policies, and activism work in the digital age. These lessons will remain instructive regardless of what ultimately becomes of net neutrality policy in the suddenly even more volatile and unforeseeable near future.

The original research in this book seeks to contribute to the field of communication and media studies.* In this way, the book seeks to help advance critical insights into the complex and contradictory forces shaping the structures of communication in the digital age, from neoliberalism and populism to corporate dominance and technological openness, and the work that people can do to effect change on these fronts. Beyond the interest in net neutrality itself, then, this book also serves as an extended case study of important institutions, processes, and practices in media and how power operates in and through them, which will remain relevant whatever happens following this moment.

The battle for net neutrality has been fundamentally about sustaining public values over private interests—a fight for democracy in communications. Net neutrality is a struggle in the politics of policy and infrastructure. As general material resources that enable and constrain what actions and practices are possible, media infrastructures like broadband shape the conditions and possibilities of communication that depend on them and, consistent with social democratic political commitments, ought to operate as a public good available to all on an equitable basis, without favoring who can use it or for what. Policy-making is the central means through which such decisions about access to resources are made, and for regulation to serve democracy it is necessary that policy-making processes represent the interests of the people, which it will not do unless people demand that their voices be heard.

Net Neutrality and the Infrastructure of Internet Access

The internet is not something that you just dump something on. It’s not a big truck. It’s a series of tubes.

—Sen. Ted Stevens (R-Alaska), June 28, 2006°

The net neutrality debate is a struggle to shape internet infrastructure.® Net neutrality articulates a particular vision of the internet and its purpose that conflicts with that of the corporations that control the means of physical access to the internet. People need broadband to connect to the internet; these high-capacity internet access networks carry traffic back and forth at the speeds necessary for contemporary online content and services.” The WiFi in your house is not the internet—your laptop needs the cable going out of your wall to get there. Your phone does not function by magic—the invisible waves it shoots in the air end up at a cell tower hooked up to plenty of wires. In between you and anything you want to do on the internet is this material infrastructure, which is overwhelmingly controlled by a telecommunications industry that owns the rights to wire into your house and beam into your airwaves. This infrastructure is run by a small number of big cable companies, especially Comcast and Charter, and phone companies, especially Verizon and AT&T.’ Net neutrality says that this connection to the internet should remain open, treating anything that goes in or out equitably and not giving unfair advantage to some things over others. Big broadband providers disagree.

The cable and phone companies that occupy this “last mile” network aim to leverage their bottleneck position into gatekeeper control over the internet—a fundamental reshaping of an open, general-purpose communications infrastructure. A necessarily simplified yet roughly illustrative model of how the material infrastructure and institutional arrangements of internet access have traditionally worked is shown in figure 1.

When a person (the “end user” of the internet) clicks on something on the internet (content like a website, Google search, or Netflix video, or communication with another user like a tweet, email, or Instagram photo), they request data from the servers on the network where it is stored (likely a large data center run by an online platform like Facebook, streaming service like Netflix, or web servers hosted by Amazon). That data is then passed from content providers’ servers to the internet backbone (large content providers often own their own “transit” lines to the internet). Then the large-scale telecommunications companies that operate the backbone of the internet (including Verizon and AT&T) transmit the data through their networks to the broadband provider that provides the end user with internet access. Finally, the end user’s internet access provider (a consumer broadband provider like Comcast, AT&T, Verizon, or Charter) connects that data to the end user’s device. Within this traditional arrangement, content providers pay into the operation of internet access infrastructure in one of two ways: either subscribing to an access provider (just like any user of the internet, except with much higher capacity) or investing in their own infrastructure by building their own network to connect themselves to the internet.

This traditional arrangement for internet traffic is what broadband providers like Comcast, Verizon, and AT&T are trying to change. These internet access providers are more interested in being content distributors than what the industry calls “dumb pipes” that do nothing more than pass traffic from point A to point B. They want a piece of the new revenues being generated by video streaming and online platforms, especially given that the legacy business models of the large cable and phone companies that dominate the broadband market are threatened by competing services that go “over the top” of the internet (e.g., watching Netflix instead of cable TV). Their desired model is what economists call a “two-sided market” and what most people would call double dipping—or collecting protection money.’

The Whitacre Tax

How do you think they’re going to get to customers? Through a broadband pipe . . . Now what they would like to do is use my pipes for free, but I ain’t going to let them do that because we have spent this capital and we have to have a return on it . . . Why should they be allowed to use my pipes? The internet can’t be free in that sense . . . For a Google or Yahoo! or Vonage or anybody to expect to use these pipes free is nuts!

—Ed Whitacre, AT&T CEO, October 31, 20057”

Without net neutrality protections, broadband providers can institute payto-play arrangements, as described above by then AT&T CEO Ed Whitacre. In what we could call a “Whitacre tax,” an end user’s broadband provider can impose various charges on content providers (shown in figure 2). This is typically in exchange for some sort of preferential treatment, such as a prioritized “fast lane” to users or a “zero-rated” plan, where such traffic is not counted against a user’s data cap, or simply a toll to pass through the pipes on the way to a user. Either way, it effectively becomes a tax collected by internet access providers to allow the content provider to reach its users.'! This has already become a standard practice in many places around the world. It is problematic not only because it adds to the amount content providers already pay for access to the internet, raising costs that will ultimately be passed along to users, but also because the large content providers who can afford this payola exercise an unfair advantage over smaller start-ups, independent and nonprofit organizations, and everyday users.”

ce 808 uzy uzy U a} _ Wn 2. pfen] SS a =. broadband E <c»

ET ac E broadband A =A : E) the internet EN b A ` ~ = end-user other end-users

Fig. 1. Traditional internet access infrastructure (diagram by author).

"Whitacre tax"

broadband the internet EN þ end-user

Fig. 2. Internet access infrastructure with a “Whitacre tax” for content to reach users (diagram by author).

content

"privatized internets"

Hols e content =a 4c ce broadband

—. 4 ; mg) 7 the internet Hl jee Z = = end-user other end-users

Fig. 3. Internet access infrastructure as “private internets” (diagram by author).

Private Internets

As shown in figure 3, specialized services involve running private networks ostensibly distinct from “the public internet.” These differentiated fast lanes on broadband pipes have been commonly used for the internet access providers’ own broadband-based TV and telephone services, but many deals involving other content and applications are in the works. This is troubling because it splits a formerly unified internet into multiple “internets” that are separate and unequal. In what is often referred to as the “dirt road scenario,” broadband providers and the corporations that can afford to pay them for uncongested priority distribution travel smoothly on their own toll road, providing incentives for investment and innovation only on the private internets, while smaller users are confined to a crowded parallel “dirt road,” effectively squeezing out the public internet and marginalizing public participation in online media creation and circulation.

A Brief History of Net Neutrality in the United States

This book provides a historical record of the US net neutrality debates. The pages that follow zoom in on specific events to develop a detailed investigation of key moments organized thematically. To lay a clear foundation for the analysis that follows, a high-level, chronological telling of this story is in order at this point. More details on each of the events recounted in this section are taken up in the chapters below.

The term “network neutrality” was first introduced in a policy memo written by law scholar Tim Wu in 2002 and fleshed out in a law journal article a year later, proposing rules to the Federal Communications Commission to prohibit blocking and discrimination on internet access networks.” As internet access was moving from dial-up networks over phone lines to broadband networks over cable, the FCC under the George W. Bush administration had to choose how to define the new technology and how to regulate it. Under pressure from the cable industry, in 2002 the FCC chose to treat broadband more like cable television than telephone lines, removing the public utility—style regulatory framework that applies to phones to connect all equally. This kicked off the decade-and-a-halflong fight for net neutrality.

Despite some tendency to treat it as such, network neutrality was not a new concept sprung forth fully formed from the mind of Wu in 2002. He was not so much introducing a new concept as putting a name to the principle of openness and nondiscrimination by which the internet had been governed since its inception. Net neutrality comes out of two traditions— one technological, one regulatory—that enabled the open architecture and equitable access that once characterized the internet. The technological tradition (which informed computer networking since the 1960s) is the “end-to-end argument” for network design, which enables control by the “end user” rather than centralized management by the network operator.'* The regulatory tradition (governing communications for centuries) is “common carriage,” the equal treatment requirement on public utility telecommunications infrastructure, including dial-up internet access, that the FCC declined to extend to broadband.

The equitable access that Wu referred to as “network neutrality” was once a built-in consequence of the end-to-end architecture of the early internet and was backed up in policy by common carriage. Early proponents emphasized how on an open internet anyone could invent something new and share it with the world, including new apps that would change how the whole network was used; as Tim Berners-Lee put it, “When I invented the Web, I didn’t have to ask anyone’s permission.”'* However, changes to the technical and institutional structures of the internet around the turn of the millennium brought with them more incentive and ability for network operators to discriminate among internet uses. With the FCC

IO * NET NEUTRALITY AND THE BATTLE FOR THE OPEN INTERNET decision to remove common carriage from internet access, there was little regulatory protection against such practices. As the term “network neutrality” became “net neutrality,” narrowly technocratic matters gave way to broader social, political, and economic concerns.

Steps Forward, and Backward, for Net Neutrality

A major court battle and increasing advocacy raised net neutrality to prominence in the policy sphere. In 2005 the US Supreme Court upheld the Bush FCC’s decision to deregulate broadband by removing the public utility framework, heating up the debate among lawyers, economists, and technologists over net neutrality policy to fill the void. The Bush FCC issued a set of guidelines for net neutrality in 2005 (and, later, conditions on a telecom industry merger and some wireless spectrum licenses) but put no binding policy on the books. Calls to formalize the net neutrality rules grew, including from then fledgling tech companies like Google and Amazon, lobbying for net neutrality policy as necessary to avoid being squeezed by broadband providers. Media advocacy groups, led by the media reform organization Free Press, took up the issue for its importance to democracy and in 2006 began organizing the broad coalition that would grow to become the strong activist base for net neutrality. In 2006 the Save the Internet campaign defeated proposed legislation that would have cemented the FCC’s deregulation, and net neutrality became officially recognized as a potent activist issue.

From the outset, net neutrality had vehement opposition from the telecommunications industry that controls broadband. Comcast, Verizon, AT&T, other cable and phone companies, and their industry-funded think tanks, consistently resisted such regulation, arguing that it would stifle investment and innovation in broadband. Emphasizing the private property status of the networks, telecom companies see government intervention into the operation of their business as fundamentally illegitimate.

Mainstream media began to pay attention to net neutrality in the mid- 20008, with several conspicuous examples of broadband discrimination and policy-making considerations. Incidents such as the phone company Madison River blocking access to the internet phone service Vonage, Canadian internet access provider Telus blocking access to their workers’ union website during a lockout, AT&T CEO Ed Whitacre’s quickly notorious interview in which he said that he “ain’t going to let them use my pipes for free,” and Verizon executives complaining of Google’s “free lunch” were picked up by the press and major blogs, bringing visibility to net neutrality. The big net neutrality bombshell hit in 2007 and 2008: Comcast was caught blocking access to the file-sharing service BitTorrent, and the Bush FCC issued a major ruling against the cable giant for violating net neutrality guidelines. Several net neutrality bills were proposed in Congress, and supporters were now paying close attention to these events in the policy sphere, culminating most prominently in the viral video of Sen. Ted Stevens’s declaration that the internet “is a series of tubes” during a congressional committee debate.

Net neutrality was not originally a divisive political issue, but it became polarized especially after the 2008 election of President Barack Obama. The initial coalition of support for net neutrality included everyone from bloggers and librarians, to organized labor and feminists, to gun owners and evangelicals. The issue was understood as a fundamental protection for free speech and civic participation, no matter for whom or what. Net neutrality lost support from conservatives once it was an Obama campaign promise; the rise of the Tea Party movement shortly after he took office brought with it blanket right-wing opposition to and obstruction of anything the Obama administration or congressional Democrats attempted. Net neutrality was therefore treated by the right as creeping “socialism” enabling a “government takeover of the internet.”

Weak Net Neutrality Won and Undone

The Obama FCC passed net neutrality policy in 2010 in an industrydriven process that ended up complicated by a federal court case. FCC chair Julius Genachowski proposed “Open Internet” rules in 2009 that called for specific binding net neutrality regulations. In semiofficial fashion, Verizon, Google, and others from the telecom and tech industries began negotiating a compromise on a limited set of rules that did not apply to mobile broadband or so-called private internets. Six months into making these rules for broadband, however, the DC Circuit Court handed down a decision finding that the FCC had practically no authority to regulate broadband. The FCC ruling against Comcast in 2008 for net neutrality violations was based in nonbinding guidelines from 2005 that the court found gave the agency no meaningful enforcement authority. Net neutrality advocates pushed hard for stronger rules, based in a change back to a public utility (“Title II”) framework, which was briefly considered by the FCC but received tremendous backlash from the telecom industry. Instead,

Genachowski pressed ahead with a set of compromise net neutrality rules prohibiting blocking and unreasonable discrimination but filled with loopholes and built on unsure ground for regulatory authority (“Title I”). In December 2010 the Democratic majority at the FCC passed the agency’s first binding net neutrality policy in the Open Internet rules.

The 2010 Open Internet rules stood until 2014, were not very effective against some abuses not included in the policy, and were undone in court. Broadband providers got around the rules and exempted some traffic from the limits on users’ data plans. For AT&T and other mobile providers, it was partners paying for the privilege; for Comcast it was its own broadband TV service. Most notably, Comcast throttled Netflix streams for nearly a year, until the streamer paid a toll to reach its viewers. Verizon, who had a lead role in writing the rules, had sued to eliminate them, and in the case that followed, the DC Circuit struck down the policy in 2014 because the FCC did not have the authority it needed based on its lack of regulatory authority. The court ruled that net neutrality is just updated common carriage, so enforcing net neutrality needed a public utility framework for its authority, which the Bush FCC had eliminated. This kicked off the fight for a new set of net neutrality rules, with a stronger foundation this time.

Public-Powered Win for Strong Net Neutrality

‘Tom Wheeler, the new Obama administration FCC chair, began a rollercoaster process to make new Open Internet rules in 2014. A leaked version of the proposed rules, which included provisions endorsing paid fast lanes for internet traffic, kicked off a backlash from net neutrality supporters, who protested online and at the FCC. Building on the progressive energy that had built since the Great Recession of 2008-2009 and Black Lives Matter since 2013, an inclusive advocacy coalition framed net neutrality as a necessary part of economic equality and racial justice and pushed for the internet to be a public utility that enables equitable participation and the means of self-representation for the marginalized. Net neutrality took on a markedly more anticorporate tone, with advocacy focused on a regulatory check on the power of cable and phone companies in order to prevent Comcast, Verizon, and AT&T from being gatekeepers building “fast lanes for the few” and a “separate and unequal” internet. Net neutrality by this time had burst out of the realm of policy wonks to become a mainstream political issue, discussed by prominent politicians and regularly covered in major news outlets, but the most prominent media coverage came from a comedian, John Oliver, on HBO’s Last Week Tonight.

Net neutrality advocates organized a campaign of public participation during 2014 that created great pressure on the FCC to enact rules with a strong regulatory foundation. A unified and diverse coalition of media democracy and racial justice activists, legal and technologist advocates, and online creators and start-ups organized under the banner “Battle for the Net,” pushing for strong net neutrality in both the policy sphere and the public sphere. Net neutrality advocates fought back against the telecom industry and the lobbyists, think tanks, and conservative commentators who deeply opposed the idea of public utility regulation, which they had successfully framed as “the nuclear option.” No longer start-ups, tech giants like Google, Amazon, and Facebook largely stayed out of the fight, while smaller tech companies stepped in to support, but the push for net neutrality was decidedly led by advocates, organizers, and regular people. Protests and demonstrations engaged both online, like the Internet Slowdown Day on tens of thousands of websites, and offline, like occupations of the FCC building and even Chairman Wheeler’s driveway. These actions drove millions of people to contact the FCC and their congressional representatives, resulting in a record-breaking 4 million public comments to the Open Internet rule-making process, crashing the FCC’s servers twice. This powerful popular force in support of net neutrality made good policy into good politics.

Chairman Wheeler backed away from his initial weak proposal and briefly began to consider another compromise approach before it was met with another wave of protests, public outcry, and one particularly strong voice calling for a change: President Obama. Following the 2014 midterm elections, where Republicans gained unified control of Congress with their largest majority in a century, President Obama fully pivoted toward executive action his administration could take on its own, including more ageressive FCC net neutrality regulation. He publicly called for the strongest net neutrality rules possible and for it to be accomplished by changing to a public utility framework. It was a highly unusual, and controversial, move for a sitting president to directly call for specific policy from an independent agency like the FCC. Attempting to head off forceful regulation, congressional Republicans proposed a compromise on a net neutrality law, with serious rules but removing the FCC’s ability to meaningfully enforce them. With an activist base pushing them, Democrats stood firm in support of strong FCC rules. The activism and advocacy had paid off, making net neutrality a winning political issue and shifting the momentum toward bold policy action.

In 2015 the FCC passed net neutrality policy again, this time with stronger rules based on a more stable regulatory foundation. Chairman Wheeler’s proposed new set of Open Internet rules were right in line with what advocates and President Obama had called for. The Democratic majority at the FCC passed clear rules against blocking, throttling, and fast lanes and included a change back to a public utility regulatory framework. The telecom industry again sued the FCC to overturn the rules, but this time the policy survived in federal court in 2016: by changing to a public utility regulatory foundation, the FCC did have the authority it needed and net neutrality policy stood. Net neutrality advocates celebrated what was hailed as the biggest public interest victory in media policy in decades and the most successful progressive activist campaign in years.

Net Neutrality Trumped

As with so many other things, net neutrality was turned upside down when Donald Trump was elected president in 2016. President Trump came into office with a stated goal to “dismantle the regulatory state” and a preoccupation with undoing anything accomplished by President Obama. Consistent with this, President Trump elevated the most outspoken critic of net neutrality at the FCC, Ajit Pai, from commissioner to chair, and the FCC immediately set about removing the Open Internet rules and their public utility authority in the name of “Restoring Internet Freedom.” The plan was met with more mass resistance as activists organized online demonstrations and protests at seven hundred Verizon stores across the country. Net neutrality was now a major political issue with overwhelming support across the political spectrum in public opinion. Big tech companies did step up to oppose the plan and, in touting the importance of net neutrality, the telecom industry actually agreed: broadband providers publicly professed their support for net neutrality in principle but said they would regulate themselves on it. They did not have to do much to bring the Trump FCC along their way to deregulate— Republicans at the agency were staunchly committed.