Net Neutrality Series 2.0

FCC’s First Net Neutrality Fine Heralds The Big Internet Chill

Posted by | Broadband Internet, Net Neutrality Series 2.0 | No Comments

I doubt ISPs are laughing at the irony in the FCC’s decision to propose a record-setting fine for an alleged lack of transparency without the agency providing any guidance regarding the reasonableness of the underlying practice.

When it adopted net neutrality rules imposing “Title II” restrictions on the Internet, the Federal Communications Commission (FCC) claimed it was adopting a “modernized” approach that wouldn’t burden Internet service providers (ISPs) with “antiquated rate regulation” — a claim FCC Commissioner Ajit Pai charged was “flat-out false.” The first net neutrality fine proposed by the FCC has since revealed Commissioner Pai was telling it true. The FCC’s net neutrality rules impose the same old rate regulation on ISPs with the “modern” addition of unfair procedures and discriminatory enforcement.

The fundamental duties that Title II imposes on ISPs are exactly the same as those it has imposed on telephone companies since 1934: to provide communications serviceupon reasonable request subject to reasonable charges and practices that are not unreasonably discriminatory. Both ISPs and telephone companies are also required to publicly disclose their charges and practices.

The biggest change the FCC made to Title II involves its process for monitoring and enforcing these antiquated obligations. The 1934 version of Title II requires the FCC to determine the reasonableness of telephone services before they are offered to the public and the “21st century” version requires ISPs to offer their services without knowing whether the FCC will fine them afterward. This seemingly minor procedural change has the effect of keeping the harmful aspects of antiquated rate regulations in place while discarding their only potential benefit. Read More

New Net Neutrality Order Is a Nadir for the First Amendment & Internet Freedom

Posted by | Broadband Internet, Freedom of Speech, Net Neutrality Series 2.0 | One Comment

If a court affirms the FCC’s ruling that broadband Internet service providers (ISPs) have no right to exercise editorial discretion over Internet transmissions on their networks, the First Amendment could not stop the government from censoring the transmissions of end users on ISP networks.

The First Amendment is premised on a simple idea: Ensuring mass media communications are free of government control is a “precondition to enlightened self-government and a necessary means to protect it.” Though this principle should be obvious, it has been lost in application to the Internet age. In its recent order adopting net neutrality rules and reclassifying Internet access as a common carrier service subject to telephone regulation (“Net Neutrality Order”), the Federal Communications Commission (FCC) concluded that Internet transmissions on networks operated by broadband Internet service providers are not entitled to protection from government control. According to the FCC, the transmission of Internet communications is not constitutionally protected speech, because it is not “inherently expressive.” Net Neutrality Order at ¶¶ 547-49. The FCC relied on this conclusion to justify its decision to regulate the Internet as if it were a plain old telephone network that transmits only common carrier communications.

The FCC’s conclusion is an unprecedented nadir for the First Amendment and Internet freedom. In a paper released last week, the Center for Boundless Innovation in Technology describes four constitutional principles that explain how the Net Neutrality Order eviscerates the freedom of the press. These four principles are summarized below. Read More

CBIT White Paper: How Net Neutrality Invites the Feds to Ignore the First Amendment & Censor the Internet

Posted by | Broadband Internet, Freedom of Speech, Net Neutrality Series 2.0 | 5 Comments

Click HERE to download the paper in PDF.

Executive Summary

Is watching Netflix on the broadband Internet more like (A) watching cable television or (B) talking on the telephone? Common sense suggests the answer is “A”, the court that overturned the previous open Internet rules[1] chose “A”,[2] and the First Amendment demands it. The Federal Communications Commission (“FCC”) nevertheless chose “B” in the Second Internet Order:[3] It concluded the Internet is the functional equivalent of the public switched telephone network and is subject to the common carrier regulations in Title II of the Communications Act of 1934.

If the FCC had admitted the Internet offers communications capabilities that are functionally equivalent to the printing press, mail carriage, newspaper publishing, over-the-air broadcasting, and cable television combined, it would have been too obvious that classifying broadband Internet service providers (ISPs) as common carriers is unconstitutional. Like all other means of disseminating mass communications, broadband Internet access is a part of the “press” that the First Amendment protects from common carriage regulation. Read More

ICANN, Meet Your New Master, the FCC

Posted by | Broadband Internet, International, Net Neutrality Series 2.0 | 4 Comments

This is the first post in a new series: Net Neutrality 2.0.

The National Telecommunications and Information Administration (NTIA), an executive branch agency within the Department of Commerce, sparked controversy last year when it announced its intent to transition its oversight of Internet domain names to “the global multistakeholder community.” The controversy is now over. The NTIA no longer has authority to relinquish U.S. control over the Internet domain name system. Though few seem to have realized it, the FCC assumed plenary jurisdiction over Internet numbering in its 2015 net neutrality order reclassifying the broadband Internet as telecommunications (Reclassification Order). Read More