Media Rants: Chris Terry on Net Neutrality

Chris Terry on Net Neutrality

Media Rants 

By Tony Palmeri

from the June 2014 issue of The SCENE 

On May 15^th the Federal Communications Commission issued a “Notice of Proposed Rulemaking” (NPRM) regarding “net neutrality.” Go to freepress.net for specifics on how to get involved.

Net neutrality is a complex issue. For enlightenment, Media Rants turns to Dr. Chris Terry, Lecturer in Media Law and Regulatory Policy at the UW Milwaukee Department of Journalism, Advertising, and Media Studies. Dr. Terry writes extensively on issues related to media ownership and government policy. 

Media Rants: What is net neutrality?

Net neutrality is a term coined by Tim Wu referring to a multi-pronged regulatory approach to internet structural regulation. It is a social democratic regulatory approach related to internet traffic.

Two aspects: First, the term is most closely associated with the relationship between an internet service provider (ISP) and the consumer. Under net neutral regulations, the consumer gets to access whatever legal online content they choose with no loss in service or speed.

Second: In an idea related to the first, the regulation would prevent an ISP from favoring content (through use of a fast lane). This is the core issue of net neutrality from a First Amendment perspective. Consumers have no defense when their ISP chooses to limit or even block content from them.

Because most consumers get their internet service from a cable company that co-owns other media content or services, the cable companies have an economic incentive in controlling what content consumers can have access to. They would like to direct you to content and services they own, so they favor that content over their competitor's content.

MR: Some critics claim that the US Court of Appeals for the District of Columbia "killed" net neutrality in January of this year. Is that accurate? What exactly did the District Court decide?

An oversimplification of Verizon v. FCC (2014), but the result is reasonably accurate. Verizon, like Comcast did in an almost identical case in 2009, challenged the FCC’s  authority to enforce net neutrality rules under the delegation of power from the 1996 Telecommunications Act, saying that Congress had not delegated the FCC power to enforce such provisions. That authority does not exist under current law, and the Circuit court ruled the same way it had in the earlier Comcast case, declaring the rules to be outside of the enforcement authority of the FCC.

Comcast challenged the FCC's policy from 2005 after the agency declared Comcast had violated the Four Principles Policy passed by the FCC in 2005. The FCC lost that case in early 2010, then passed a second set of net neutrality regulations later that year. The Verizon case undermined the second set of regulations (which were very similar to the first set).

MR: Comcast and Time Warner Cable, the two biggest players in cable and Internet service, have announced a $45 billion merger. If that deal is approved, what will it mean for Internet freedom?

Comcast would become the single largest provider of internet service in the U.S. Given that Comcast has a demonstrable history of blocking content it finds objectionable, at the same time favoring providers that pay for priority transmission or content owned by subsidiaries (like NBC), there's little to be happy about in terms of deal's effect on internet freedom. Comcast is an active member of the Center For Copyright Information's Six Strikes Program, and was responsible for the court decision which started the chain of (regulatory) events which culminated in the vote on May 15^th  at the FCC on the NPRM.

MR: What is the view of the current FCC Chair Tom Wheeler on net neutrality? Are Wheeler and his colleagues on the FCC taking stands that benefit the consumer?

His stated view is that net neutrality is important, and that he won't let the agency back away from an "open internet." As someone who has studied regulatory policy by the FCC, I remain skeptical of how well his rhetoric matches his actions, or the decisions being made at the agency under his watch. The DC Circuit gave the FCC permission to proceed with meaningful net neutrality provisions if the agency chooses to reclassify broadband as a common carrier as part of the Verizon decision earlier this year. Reclassification would be a contentious process certainly, but it is a clear policy agenda and regulatory path to follow.

MR: What can the average citizen do to help make sure the Internet remains open?

You can complain to the agency, but the FCC's record on consideration of citizen complaints on structural regulation is not positive by any measure. Real pressure needs to go on legislators in Congress to grant the FCC the authority to act. The courts have not overturned net neutrality as a burdensome regulation on speech, rather the circuit court has said the FCC simply lacks the authority and jurisdiction to act as it did in 2005 and again in 2010.

MR: How important is net neutrality?

I think people fail to understand the consequences of failure on net neutrality. The constitutive choices about the future of the internet, broadband and mobile access are being made right now. If the FCC fails to implement a citizen orientated approach, there will be fundamental changes in how consumers can access content online, and very few of those changes are positive for the consumer.