Abstract
“Net neutrality” has once again been all over the news in the past year. Between a controversial opinion by the Court of Appeals for the District of Columbia Circuit in the Verizon v. FCC case in 2014 and the equally controversial standards propagated by the Federal Communications Commission (FCC) in March 2015, something or somebody must bring order to the topic and its scholarship.
The concept of net neutrality is both simple and extremely complicated. Dana D. Bagwell’s book helps put the complex topic into perspective, especially incorporating the Internet into a discussion of free speech principles and the marketplace of ideas. The book does a solid job of tracing the legal and policy aspects of Internet regulation and the public policies behind attempts to control the Internet. The book goes back to the origins of the FCC and its role in developing laws and policies relating to an ever-changing world of communications.
The author thoroughly explains such potentially abstract policy topics as dial-up modem regulations, broadband policy, and the difference between information services, telecommunications, and telecommunications services under Titles I and II of the Telecommunications Act of 1996. These regulatory schemes and controversies and the accompanying legal battles set the foundation for today’s net neutrality rules—and the debate surrounding them.
The book also painstakingly summarizes reams of FCC policies and federal laws on communications and dozens of court decisions. This is a unique topic that envelops all three branches of government.
Bagwell writes,
Since network neutrality rules have become the framework by which the FCC will regulate the Internet, it is imperative that the debate move from questioning whether network neutrality is good policy to whether network neutrality is good communication policy. In other words, what values does network neutrality guarantee from the perspective of free speech and expression?
The author defers to, if not reveres, the work of several earlier scholars, principally Professor Tim Wu, who is credited with coining the term net neutrality in a 2003 article, and Lawrence Lessig, a prolific legal scholar on intellectual property matters. However, the author is most deferential to Jerome Barron, the eminent First Amendment scholar whose writings are repeatedly cited throughout the book and honored in the book’s concluding sentence: that the rules of access discussed throughout the book “could finally fulfill Barron’s vision of a right of access to the media.”
As a conduit for content and access to and for media, Bagwell reiterates other scholars’ arguments that the Internet is perhaps the most powerful communications tool ever created. She notes that Internet access helps citizens fulfill many important democratic principles vested under the First Amendment. But she also notes the potential for abuse, most notably by the vast media companies that own and operate the infrastructure that allows access to the Internet. Today, these lines of communications are primarily owned and controlled by cable television conglomerates. The abuse net neutrality advocates fear the most is that media companies, which own the wires and fiber-optic lines of delivery, may engage in a range of content discrimination or outright blocking of content.
For example, there is potential for slowing down online delivery of content from perhaps a competing media company or content that the online service provider has some sort of political or ideological objection to. Some argue that this justifies the government’s regulation of the Internet to make the net neutral to the content.
Discussing a 2010 FCC order in the Comcast case, Bagwell illustrates how the FCC intervened and established three rules aimed at maintaining an open Internet: transparency, no blocking of content, and no unreasonable discrimination of content.
Bagwell also points out how viewpoints on net neutrality have also been politicized: Democrats support net neutrality rules as a means of protecting everyone’s access to an unfettered Internet. Meanwhile, Republicans see regulation as unnecessary government interference that will stifle competition and future developments.
A little perspective on net neutrality is definitely needed. The FCC’s recent “Report and Order on Remand, Declaratory Ruling and Order” on net neutrality released March 12, 2015, comprises 400 pages, compared with Bagwell’s book, a mere 162, which includes an 18-page chapter on free speech theory. Bagwell also explains how FCC commissioners, particularly the past three chairmen, have viewed net neutrality. Because this book predates the appointment of the current FCC Chairman Tom Wheeler, who has overseen a significant shift in commission net neutrality policy, the book becomes more historical than contemporary.
It is difficult to render a conclusion to a topic that still remains in a state of flux both technologically and from a regulatory and political perspective. Although the law may well change again, one simple way to summarize this complicated topic is to equate the telephone lines that deliver the Internet to the pipes that deliver water or remove sewage. Comparing the Internet with traditional public utilities, perhaps, provides an easy-to-comprehend analogy.