AT LONG LAST, someone who gets all the major points about this neutrality
mandate. None of this "the concept began in 2003" nonsense. He goes way back to
English common law in the 16th Century, then the Postal Service, telegraph, and
the Mann-Elkins Act of 1910.
All the points, including how classification of ISP occurred in an era where
access to them was via Title II telephone lines.
Chairman Pai needs to memorize this article, and get a clue about what is
(Remember: you read it here first.)
What FCC chair Ajit Pai gets wrong about net neutrality
Repealing net neutrality would undo centuries of communication policy
By Danny Kimball
Danny Kimball is assistant professor of communication and media studies at
By promising to undo net neutrality, the Federal Communications Commission is
preparing a reversal of “common carriage” communications policy that dates to
the founding of the country. (Andrew Harnik/Associated Press)
Last week, in a stark yet widely anticipated policy reversal, the Federal
Communications Commission’s Trump-appointed chairman (and former Verizon
attorney) Ajit Pai announced his plan to undo net neutrality rules. Established
by the Obama administration’s FCC in 2015, these rules prohibit broadband
Internet service providers (ISPs) such as Comcast, Verizon and AT&T from
blocking, throttling or prioritizing Internet traffic. These rules treat
high-speed Internet access as a public utility, requiring openness and
mandating that providers cannot discriminate among online content and services.
Pai and his two Republican colleagues, however, would undo all of that, going
so far as to relinquish nearly all of the commission’s oversight authority of
But Pai’s case for repealing the net neutrality rules and the broader framework
underlying them misconstrues — or ignores — the history behind net neutrality,
as both principle and policy.
First, the chairman has mischaracterized the rules as an unprecedented and
unnecessary power grab by the Obama-era FCC, saying that the Internet got along
just fine without any net neutrality protections before 2015. Second, he argues
that the current regulatory framework classifying Internet access as a public
utility is antiquated, a policy “designed in the 1930s for the Ma Bell
monopoly” and irrelevant to today’s technologies. Finally, Pai claims this
change will return to what Congress intended — the Bill Clinton-era FCC policy
of only lightly regulating Internet access, instead of the public utility
obligations of ISPs today. He contends that this “free market” approach enabled
the boom in Internet investment and innovation that followed.
In all three accounts, however, Pai is mistaken. In reality, the only
“innovation” his plan would foster is new ways for telecommunications giants to
make even more money — at the expense of consumers and democracy.
The historical context missing from Pai’s account is crucial to understanding
the issue of net neutrality and its stakes. Ending net neutrality — leaving
broadband providers to chase profits without public obligations — would be a
disastrous reversal of communications policy that dates to the founding of the
country and ensures the equal access to information that democracy needs to
function. Especially in this era of steep inequality, corporate control and
rising authoritarianism, the open Internet is a foundational necessity to hold
the powerful to account.
When Columbia law professor Tim Wu coined the term “network neutrality” in
2003, he was not so much introducing a new concept as he was updating for the
Internet age the long-standing principle that access to basic communications
infrastructure should be open and nondiscriminatory — a historical tradition
that goes back centuries and a policy decision that has shaped the Internet
since its inception.
Net neutrality is based on the tradition of “common carriage,” the
state-enforced duty of basic communications utilities to serve all on an equal
basis. The roots of modern common-carriage regulation lie in 16th-century
English common law, where general transportation and communications services —
even if provided by private actors such as ship owners and messengers — were
considered to come with “public callings,” such as treating all users on equal
Democracy depends on the public having equal access to information and the
ability to communicate with one another, so the resources to do so must either
be publicly owned and operated or else regulated to ensure obligations to the
public are met. As a result, nondiscrimination protections have been the core
of U.S. communications policy since the beginning.
The federal government established the U.S. Postal Service as a publicly owned
common carrier and has operated it on an open and nondiscriminatory basis
since. Common-carriage policy regulated telegraph operators beginning in the
1880s and was extended to telephone services by the Mann-Elkins Act of 1910.
Congress established a comprehensive policy of common carriage in the
Communications Act of 1934, creating the FCC and tasking it, under Title II,
with enforcing universality and nondiscrimination on neutral networks for the
public to access information and communication on an equal basis.
This legislation is what Pai is referring to when he complains about the FCC
relying on dusty old phone regulations to enforce net neutrality. But the Title
II regulatory framework is not strictly about phones, anymore than prior
common-carriage protections were about ships or telegraphs — it’s about basic
principles of openness and nondiscrimination, no matter the technology used to
These same principles have guided Internet access since its beginning. The FCC
has applied openness policies to computer networks since the 1980s, when it
separated the “information services” that make content available on a network
from the “telecommunications services” that operate the basic infrastructure of
the network. The Telecommunications Act of 1996 codified this distinction for
the FCC: Title I spelled out a hands-off approach to information services’
content, while Title II mandated strong common-carriage protections for
telecommunications services’ infrastructure.
The Clinton-era FCC initiated its policy for Internet access along these lines
in 1998. It classified ISPs as information services, the decision celebrated by
Pai to treat them with a “light touch.” But Pai omits a crucial fact — the FCC
mandated open access to the underlying telephone networks that ISPs used to
provide dial-up Internet service. So, yes, ISPs such as AOL were classified as
information services. But the era’s dial-up Internet depended on telephone
lines, which the FCC aggressively regulated through nondiscrimination
requirements that protected net neutrality.
By the 2000s, however, Internet access shifted from dial-up to broadband and
cable companies consolidated control. They collapsed the separation between
ISPs and network operators: Unlike the prior generation of ISPs, which relied
on others’ infrastructure, the cable industry started providing access to the
Internet on networks that it owned. Even though they were acting as combined
information and telecommunications providers, cable companies demanded that
this new broadband service be classified as an information service, allowing
them to avoid oversight as operators of basic network infrastructure.
After heavy cable industry lobbying, the FCC capitulated to this demand in two
decisions in 2002 and 2005, leaving Internet openness in limbo. Leveraging this
favorable regulation and monopolized ownership of network infrastructure into
dominance over the market for broadband service, major cable and phone
companies such as Comcast, Verizon and AT&T made themselves into the kind of
powerful gatekeepers that the Internet had previously not had.
Concerns about their power sparked a debate over how to enshrine in policy the
principle of net neutrality, resulting in the FCC passing net neutrality
policies in 2005 and 2010. Both policies were struck down in court, though,
because the rules were inconsistent with the section of the Communications Act
(Title I, which pertains to information services) in which they were rooted.
The U.S. Court of Appeals for the D.C. Circuit found that net neutrality is so
closely aligned with the nondiscrimination requirements mandated by a separate
section of the act, Title II, that it could not be enforced outside that
framework. Great public pressure led the FCC to institute stronger rules in
2015, based this time in Title II, which withstood a court challenge last year.
Pai’s plan threatens to undermine equal access by changing the regulatory
framework and, in doing so, reverses communications policy that has been
central to our democracy since the founding. Calling his plan “Restoring
Internet Freedom” shows how much Pai equates corporations’ freedom from
regulation with freedom itself. However, real “Internet freedom” comes not from
a negative freedom from government intervention, but an affirmative freedom
that ensures protections for public values over private interests — the kind of
democratic assurances that come from common carriage and its modern update, net
Pai says that he wants to “save the open Internet” but that he believes a “free
market” approach, one with the FCC kept out of the way, is the best way to get
there. The history behind net neutrality, however, shows just how much the open
Internet has depended on regulatory protection and how much old principles such
as common carriage have new life now. Without net neutrality protections, giant
corporations would be “free” to create a tiered Internet, with fast lanes and
preferential treatment for the biggest and most powerful (or to charge for
access to them) — and independent creators, activists and everyday citizens
would be “free” to have their voices marginalized online.
The repeal vote on Dec. 14 is fast approaching. The Republican majority at the
FCC has ignored the public outcry against its actions, so the last chance to
save net neutrality rules now may be to call on Congress to intervene at the
commission for us.
Danny Kimball is assistant professor of communication and media studies at
Goucher College. Follow @djkimball