How to re-frame the Net Neutrality debate

The FCC is planning to vote on a resolution to repeal net neutrality in 4 days. As the vote comes near, with certainty that it will pass, I see that social media is becoming more and more agitated on the subject. This move is deeply unpopular with Americans, yet the FCC refuses to change course. It's almost as if they think that they must do what Americans do not want them to do to prove that it will work. Somehow, we're all supposed to swallow it.

But that doesn't have to happen. We can set the record straight by contacting our Congressmen and women to let them know that they need to step in with oversight. We need to remind our representatives that Congress has oversight power over the FCC and that it has the power to intervene and represent the interests of the people, first. That's the first step. The second step is to understand some of the logic behind this effort to re-frame the debate.

Does the FCC even have the authority to gut Net Neutrality rules? That question hinges on the status of the ISPs: Whether or not they are common carriers under Title II of the Telecommunications Act of 1934.

There is an old Supreme Court case known as "Brand X", that is one of the most interesting cases on the subject of the FCC's authority to classify ISPs under the Telecommunications Act of 1934. In that case, the court determined that lower courts must defer to the agency when interpreting the law if the law is ambiguous and the interpretation is reasonable. But at least one Supreme Court justice reviewed Congressional intent, and that was Justice Antonin Scalia. Scalia said that the FCC did not have the authority to define common carriers. That authority was left to Congress:

The Federal Communications Commission (FCC or Commission) has once again attempted to concoct "a whole new regime of regulation (or of free-market competition)" under the guise of statutory construction. MCI Telecommunications Corp. v. American Telephone & Telegraph Co., 512 U. S. 218, 234 (1994). Actually, in these cases, it might be more accurate to say the Commission has attempted to establish a whole new regime of non-regulation, which will make for more or less free-market competition, depending upon whose experts are believed. The important fact, however, is that the Commission has chosen to achieve this through an implausible reading of the statute, and has thus exceeded the authority given it by Congress.

(See National Cable & Telecommunications Association et al. v. Brand X Internet Services et al., 545 U.S. 967 (2005)).

Some "free market proponents" have said that the debate hinges on whether or not the enhancements from information services offered by ISPs transform a telecommunications service into an information service. Ten members of Congress who deliberated and wrote the Telecommunications Act of 1996 and/or subsequent amendments have expressed disagreement, stating that adding an information service on top of a telecommunications services does not allow ISPs to escape classification as common carriers under Title II of the Act. To make sure their voices were heard, and to remind the FCC of the intent of Congress behind the act, those same ten Congresspersons have filed a comment with the FCC on the same docket issue (the one to repeal the net neutrality rules, WC Docket No. 17-108). They stated in relevant part:

When it comes to telecommunications, Congress intended the FCC to treat services that create content differently than those services that transmit that content. In the Act, we labeled services that create content as “information services,” which we defined as those that offer the capability to generate content among other things. We also created a distinct classification of services that transmit information that we called “telecommunications services.” We defined these services as ones that offer telecommunications for a fee directly to the public. We then defined “telecommunications” as the transmission of the content between two points of the users’ choosing without change.
(see page 12-13 of comment)

The FCC plans to vote on Docket 17-108 on December 14th to make a final determination, and Ajit Pai intends to plow forward despite receiving millions of comments affirming support for the current net neutrality rules. Analysis has shown that the vast majority (98.5%) of the comments from individuals (not robots) were in favor of keeping the current rules in place.

Congress recognized the need to make a distinction between businesses that create content, and businesses that transmit that content and expressed that distinction in the legislation they passed. On page 14 of that same comment from the same ten Congresspersons, we learn that Congress has gone to great lengths to clarify the power delegated to the FCC:

The Commission’s proposal performs a historical sleight of hand that impermissibly conflates this fundamental distinction. The FCC proposes to treat network infrastructure as information services because the infrastructure gives access to the services running over their networks. The FCC contends that ISPs are therefore “offering the capability” to use the services that create the content. However this suggestion obliterates the distinction that Congress set in to law—we meant for the FCC to consider services that carry data separately from those that create data. The FCC’s proposal would therefore read this fundamental choice that we made out of the law. Under the proposal’s suggestion, no service could be a telecommunications service going forward. (emphasis mine)

It is also worth noting that Justice Scalia discussed that same distinction in the Brand X case referenced above:

As the Court acknowledges, ante, at 29, DSL service has been similar to dial-up service in the respect that the physical connection to the Internet must be offered separately
from Internet functionality. Thus, customers shopping for dial-up or DSL service will not be able to use the Internet unless they get both someone to provide them with a physical connection and someone to provide them with applications and functions such as e-mail and Web access. It is therefore inevitable that customers will regard the competing cable-modem service as giving them both computing functionality and the physical pipe by which that functionality comes to their computeróboth the pizza and the delivery service that nondelivery pizzerias require to be purchased from the cab company. (emphasis mine)

The intent of Congress is clear: If you carry content, you're a common carrier. If you own the pipes and sell access to the pipes, you're a common carrier. The term "common carrier" is at least 800 years old and is not subject to the authority of Congress. In other words, Congress cannot arbitrarily define the term and exclude some ISPs (the last mile - think Comcast) while leaving the backbone (think Level 3 Communications) within the definition of "common carrier".

Enter now, Dr. Barbara Cherry, PhD a professor at Indiana University, Bloomington. She has studied telecommunications law and has worked in the industry to understand the relationship between the services we use every day and how they are regulated. Professor Cherry was interviewed by Christopher Mitchell, Director of Community Broadband Networks. Community Broadband Networks is a non-profit organization dedicated to promoting community broadband as a public option to private monopoly service and local control over internet access choices. The following exchange during the interview is instructive:

Christopher Mitchell: And when you when you say that you mentioned that this goes back to before the the Constitution so this is I mean people were moving things for a very long time. I often think about fairies presumably a thousand years ago.

Barbara Cherry: Yes. And this was a firm body of law already by the middle ages of England and it's part of what we inherited from them. So when the Constitution was formed we already had bodies of law that our courts recognized as a place where you could receive compensation for being injured. Now what it means under tort law is the fact that it's a inherent duty that you have in how you conduct your business. And so it's more fundamental and it's even more fundamental than contract law. So the fact that a common cure has these obligations is not because you have a contract with them but it just comes with it's part of their duties of providing this kind of service. So what are the duties of a common carrier a common carrier has the duty to serve upon reasonable request which means they can't arbitrarily refuse to serve people. They have to provide service with without unreasonable discrimination. '

What we can learn from that interview is that Net Neutrality doesn't just apply to internet service providers. Net neutrality applies to all infrastructure and all service providers engaged in the work of transporting things. Net neutrality applies to freight, passengers and data - and all of that is common carriage. Common carriage is a concept rooted in settled law that is more than 800 years old. Common carriage principles are accepted without question, worldwide. Common carriage predates most modern nations, transcends borders and is not subject to interpretation by just one nation to the exclusion of all others. Contrary to what Mr. Pai has implied by his statements, it is not up to corporations to define what a common carrier is.

The logical steps of the argument are as follows:

1. Congress intended to make a distinction between content carriers and content creators.
2. Congress identified content carriers as telecommunications services and content creators as information services.
3. Congress never intended for information services to transform a telecommunications service into an information service.
4. Congress intended to impose stricter regulations on common carriers with some agency level latitude, but did not delegate authority for the FCC to make an arbitrary determination as to one or the other. Either you carry content and are subject to regulation as such, or you do not carry content.
5. Congress does not have the authority to change the meaning of common carrier and intended to apply the principles of common carriage to telecommunications services.

So what can we do? Protests are nice and they raise awareness, just be polite and stick to the issues. You can also work with organizations like the Electronic Freedom Foundation, The American Civil Liberties Foundation, Stop the Cap and the Institute for Local Self-Reliance (I'm sure there are more, but these most readily come to mind). They have a lot of experience in organizing and raising awareness as well as interfacing with government to make our concerns known.

It is important to re-frame the debate. Currently, the debate is on whether or not the FCC should repeal net neutrality. We must move the debate by stating for the record, and setting the repeal order aside as irrelevant, that the FCC lacks the authority to classify businesses that hold themselves out for hire to carry data to and from the home to the internet as anything but common carriers. To put it very simply, "If you own the pipes, you're a common carrier!"

To put it differently, regardless of whether or not the FCC "repeals" net neutrality, they must classify Comcast as telecommunications service because they're in the business of transporting bits, every bit as much as Level 3 Communications. To do otherwise is arbitrary and without authority. The repeal order doesn't matter. What matters is that when the FCC classifies a telecommunications service as an information service just because "they're selling access", the FCC makes that determination without authority.

We must move the debate from net neutrality to "the FCC does not have the authority to classify telecommunications services as information services - just because they put information services on top".

It is up to us to frame the debate properly. Every time we point out that the ISPs are common carriers, we make it that much harder for the FCC to justify their actions.