On 26 February 2015, the FCC adopted new rules on regulating the Internet:
Today, the Commission—once and for all—enacts strong, sustainable rules, grounded in multiple sources of legal authority, to ensure that Americans reap the economic, social, and civic benefits of an Open Internet today and into the future. These new rules are guided by three principles: America’s broadband networks must be fast, fair and open—principles shared by the overwhelming majority of the nearly 4 million commenters who participated in the FCC’s Open Internet proceeding.
Except, that’s not quite right. The rules don’t regulate the Internet itself; they regulate Internet Service Providers, or ISPs. But before we can understand why, we must first understand what the Internet is.
The Internet is a global system of interconnected computer networks that use the standard Internet protocol suite (TCP/IP) to link several billion devices worldwide. It is a network of networks that consists of millions of private, public, academic, business, and government networks of local to global scope, linked by a broad array of electronic, wireless, and optical networking technologies. (ref)
You may not realize it, but you probably already have such a network in your own home. If you have as little as two devices (e.g. a computer, tablet, or phone) that can communicate with each other to share files, then you have a network. That network is probably connected to a larger network — your ISP. Thus, in turn, your personal in-home network is a part of the Internet.
This is how the Internet is built. Hundrends, and thousands, and millions of these networks joining together form what we recognize as the Internet. But the real definition is a bit simpler. The Internet has a backbone:
The Internet backbone may be defined by the principal data routes between large, strategically interconnected computer networks and core routers on the Internet. These data routes are hosted by commercial, government, academic and other high-capacity network centers, the Internet exchange points and network access points, that interchange Internet traffic between the countries, continents and across the oceans. Internet service providers, often Tier 1 networks, participate in Internet backbone exchange traffic by privately negotiated interconnection agreements, primarily governed by the principle of settlement-free peering.
“But wait,” you may be saying, “if the backbone is comprised of ISPs, then that means the new FCC regulations govern the Internet!”
Maybe, to an extent. But the ISPs that make up the backbone aren’t the same sort of ISP that you or I interact with on a daily basis — the guys that are really being regulated.
Internet Service Providers
An Internet service provider (ISP) is an organization that provides services for accessing, using, or participating in the Internet. Internet service providers may be organized in various forms, such as commercial, community-owned, non-profit, or otherwise privately owned. (ref)
There are multiple “tiers” of ISPs. The ISPs you and I deal with are known as Tier 2, and sometimes Tier 3, providers. The Tier 1 networks form the true core of the Internet. Tier 1 is not targeted by the new regulation.
Tier 2 and 3 are referred to as “broadband providers” in the FCC press release. These are the ISPs that offer consumer level Internet connections at “broadband” speeds. True, the relative broadband term could be applied to the connections between Tier 1 networks, but no one does. Indeed, the press release spells this out on page 3 in plain English:
First, the Order reclassifies “broadband Internet access service”—that’s the retail broadband service Americans buy from cable, phone, and wireless providers—as a telecommunications service under Title II. This decision is fundamentally a factual one. It recognizes that today broadband Internet access service is understood by the public as a transmission platform through which consumers can access third-party content, applications, and services of their choosing.
In other words, the ISPs we regular Joe Schmoe consumers do business with are common carriers. The ISP doesn’t provide the content, they simply provide access to the content. They “carry” your request for a resource to the resource provider and then “carry” the resource back to you.
Net neutrality is the name given to the concept that the Internet is a realm of free speech and open innovation, and that these freedoms should be protected from those who stand to lose a lot of money due to them. That is, speech and innovation are content that comprise the Internet.
What happens when an ISP also has a major content business? They prioritize their own content and make it difficult to acquire the content that isn’t theirs. This isn’t conjecture. We have real data that proves this happens:
So, the ISP who is supposed to be providing you agnostic access to the Internet per your agreement with them is doing anything but that.
For several years those who care about the free speech and open innovation that got us to where we are today with the Internet have been trying to get Congress to “fix” the problem. Such efforts have been one of the many casualties of the contentious Congresses in recent years.
Thus we arrive at the regulation adopted by the FCC on 26 February 2015. After failing to enact meaningful rules in 2010, the FCC has used its independent agency power to re-classify broadband ISPs as common carriers. But do they really have that power? According to the laws created by Congress they do:
The Federal Communications Commission (FCC) is an independent agency of the United States government, created by Congressional statute (see 47 U.S.C. § 151 and 47 U.S.C. § 154) to regulate interstate communications by radio, television, wire, satellite, and cable in all 50 states, the District of Columbia and U.S. territories.
It has been recognized since at least 1999 that the Internet’s jurisdiction crosses all physical borders: county, state, national, and international. If the FCC’s mandate is to regulate communications across interstate borders, and the Internet is the greatest form of communication in human history, then the FCC has jurisdiction over it (within the U.S.).
But what did the FCC do? They did the bare minimum necessary to keep broadband ISPs from stifling the Internet:
- Classify broadband ISPs as common carriers under Title II of the 1935 Communications Act
- Banned blocking of, or degrading, content
- Banned instituting bandwidth caps for the sole purpose of revenue generation
- And established an allowance for network management to prevent overall network degredation
“But Title II is what makes telephone companies collect extra taxes!” That may be, but not in this regulation:
Some Title II opponents tried to convince the FCC that Title II would bring $15 billion in new user fees per year, causing millions of households to stop subscribing to Internet service.
That’s simply not true, the FCC said. “The Order will not impose, suggest or authorize any new taxes or fees,” the commission said. The moratorium on Internet taxation will continue, as required by Congress. Today’s order does not require broadband providers to contribute to the Universal Service Fund (USF), which subsidizes telecommunications projects in underserved areas.
There are plenty of people opining that this regulation will lead to content control. That just doesn’t follow from anything I’ve outlined in this post. The net neutrality regulation adopted on 26 February 2015 merely establishes the authority of the FCC to regulate “broadband Internet access service” in such a manner as to keep access to all content open, regardless of the provider.