May 15, 2023 • 48 mins
The idea behind net neutrality is pretty simple -- fair access to legal content for all consumers regardless of what ISP they use. But how do you implement this idea? That's become the focus of a massive political battle in the United States that's been going on for two decades.
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Episode Transcript
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Speaker 1 (00:04):
Welcome to Tech Stuff, a production from iHeartRadio. Hey there,
and welcome to tech Stuff. I'm your host, Jonathan Strickland.
I'm an executive producer with iHeartRadio and how the tech
are here? So several years ago, during the Trump administration
(00:26):
here in the United States, the Federal Communications Commission, or FCC,
held a vote to repeal an earlier set of rules
called the Open Internet Order. The board of the FCC,
made up of five appointees, voted three to two to
repeal those rules, despite the fact that there were concerns
(00:49):
there was hanky panky going on when the FCC sought
out public opinion on the matter. Currently, the Attorney General
for the state of New York is composing fines on
several companies found to have been guilty of essentially stuffing
the ballot boxes. As it were, These companies apparently impersonated
more than a million US citizens posting fake comments to
(01:13):
the FCC that were in favor of the repeal of
these rules. Considering that the FCC justified its vote on
the matter at least partly and it being a reflection
of the will of the people, this is bad and hey,
if you have to rig a system in order to win.
Then by definition, you're really a loser. So I thought
(01:35):
maybe we'd look back on what net neutrality is. What
is that concept? Why is there a debate about net neutrality?
Because there is, And while I am firmly in the
net neutrality camp, I acknowledge there are points being made
by people who are against net neutrality that you can't
just wave off. There are some valid points on the
(01:56):
other side. But what do the difference have to say
about net neutrality? Why is it tricky for the FCC
to enforce net neutrality? And how does the presence or
absence of net neutrality affect people like you and me? Now,
when I say you and me, I mainly mean people
here in the United States for this specific case, but
(02:18):
there are other places where this is an issue too.
I mean, obviously there are places in the world where
the government takes a much more active role in what
people can or cannot access on the internet. Here in
the US, Ideally you're supposed to be able to access
pretty much anything, but that's not necessarily how it turns out.
So first, let's define net neutrality. When you boil it down,
(02:42):
net neutrality is all about treating the ones and zeros
that are zipping across the Internet as if they're all
the same, which, by the way, some of the founders
of the or you know, people who created the protocols
of the Internet, say was never their intent. Vince Surf
and Bob conn have both said that they never intended
for all packets to necessarily be treated the same when
(03:03):
they were building out TCPIP protocols, which is interesting. Net
neutrality means that the various entities that own the infrastructure
or the pipes if you are a series of tubes,
if you like. If we're going to go way back
into the analogies of the Internet anyway, net neutrality says
(03:24):
that the companies that own that infrastructure should allow traffic
to flow through those pipes no matter where that traffic
originated from. So there should be no preferential treatment. There
should be no slowing of someone else's zeros and ones,
there should be no blocking a competitor from accessing your infrastructure.
It's meant to keep the Internet a machine that lets
(03:46):
information go to wherever it needs to go to without
being hindered along the way. This definition has actually expanded
a little bit over the years. Back when folks were
first starting to talk about net neutrality. Really, the only
way you could access the Internet was by computer, the
only meaningful way that most people could access was by computer. However,
since then, we've had a revolution of devices that can
(04:08):
tap into the network of networks that include smartphones and
tablets and Internet of Things devices, even some vehicles or
accessing information on the Internet. So another element of the
concept of net neutrality tends to be that you should
be able to access information on the Internet no matter
what device you are using to do so. So, if
(04:28):
a company happens to own some of the infrastructure of
the Internet, and also happens to be involved in the
creation of hardware, it would be against the principles of
net neutrality for that company to allow its own devices
access to its pipes. But did I entry to anyone else.
So in other words, let's say that you have an
ISP and the ISP is offering to lease you a
(04:54):
modemen router. So as part of your service, you can
essentially rent a mode and a router from this company,
which means that you are adding to your monthly bill. However,
you could just go out and buy a modem and
a router and then have that connected to your service,
(05:14):
which might require some extra steps to get it activated
because it's not part of the proprietary system, but it
should be fine. The ISP should not block you from
using some other motiven router just because it doesn't come
from them, and that would in turn mean you would
spend less on your monthly ISP bill because you're not
(05:35):
renting from them. One then neutrality says is that such
an ISP couldn't come out and say no, no, no, no,
you have to use our stuff or you can't use
anything else. These ideas are not just abstract concepts. Many
companies involved in at least some part of the Internet
infrastructure are also content providers. In other words, they don't
(05:56):
just own the pipes that stuff is moving through, they
create some of the stuff that's going through those pipes.
So one of the big examples centering around net neutrality
for years was that a company like Comcast, the largest
telecommunications company in the world, which has its own online
content products that's putting it lightly because they own NBC Universal,
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they might purposefully slow down or block traffic coming from
some other content service like Netflix, And so that would
mean if you're a Comcast customer, and you're trying to
connect to Netflix, you might end up hitting some some
traffic slowdown, like things might take a while to buffer
before you can watch them. But curiously, if you were
(06:40):
to switch to Comcasts owned and operated streaming services, there's
no such slowdown. It just loads super fast and you
can watch without problems. So potentially that could drive customers
to subscribe to Comcast's own services and to not subscribe
to competitors, which seems to be a little bit anti competitive, right,
(07:03):
I mean, why make a better product if you can
just block your customers from getting to a competitor, Right,
You don't need to make anything great if you can
just prevent anyone from having a choice. If you're the
only game in town, you don't have to make your
game better. And you might think, hey, that does sound
kind of anti competitive, and you're absolutely right it is.
And keep in mind that here in the United States,
(07:25):
many people have very few options when it comes to ISPs. So,
for example, I live in an area. I am in
the city of Atlanta, not just like in metro Atlanta.
I'm in the city and I have precisely one option
when it comes to a provider that can give me
(07:45):
speeds higher than one hundred and fifty megabits per second.
So one option is not an option, right, That's it.
That's all I've got. The other quote unquote options are
for significantly slower speeds. So I could go with a competitor,
but one and I would not be paying significantly less,
and two, I would be getting a service that is
significantly slower. So if I go to a site by
(08:08):
the way that checks for providers based on my ZIP code,
I get tons of options for insanely fast connectivity, like
way faster than what I actually have. But if I
actually go through the steps to get to a point
where I would order such a service, by the time
you get to the last step, you get a message
that essentially says we're sorry that service isn't available at
(08:29):
your location or something like that, which just shows that
I am in that position where that a lot of
people are in in the United States where you do
not have options when it comes to your choice or provider,
so there is no competition in your particular area and
you're left with whatever is there. And that means that
(08:50):
you know, if I don't have a choice in provider,
if I want a good broadband speed, and if that
provider were to decide to discriminate against other competes editors,
I just wouldn't be able to get that content, or
at least it would be a real hassle for me
to get that content. I wouldn't have an option to
view that in any other way. Even if I wanted
to subscribe and I wanted to be a paying customer,
(09:12):
I wouldn't be able to see, say, the stuff on
Netflix if Comcast decided, no, we're going to block Netflix's content.
So net neutrality is meant to make sure that doesn't happen,
where you don't have a fractured internet where depending upon
your ISP you can access certain columns of content but
(09:32):
not others. And if you're on a different ISPs, it's
a totally different shakedown of what you can and can't access.
It becomes a less useful tool, right, the Internet becomes
broken at that point. If you and another person are
on two different services, you have two totally different experiences
of what the Internet is because of those restrictions. That's
(09:54):
what net neutrality is supposed to prevent. Now let's get
into the complicated legal quagm around net neutrality. So here
in the US, we've got ourselves a handy dandy law
called the Communications Act of nineteen thirty four. And yes,
in order to understand net neutrality in its path through
the US, we have to start nearly a century ago.
In fact, technically we could go back even further and
(10:16):
go back beyond a century to talk about stuff like railroads,
which I guess you could say laid the track for
some of the concepts around net neutrality. But I'm going
to be kind, I'm not going to go back quite
that far. So the Communications Act of nineteen thirty four
set a whole bunch of ground rules to try and
untangle the chaotic mess that was threatening to make communication
(10:38):
an unfair and uneven landscape. The Act sets out rules
for assigning frequencies for broadcasts and coming up with rules
for stuff like commercials and setting various standards. And it
also established the Federal Communications Commission or f c C, which,
by the way, in its rule states that at least
one member must be of a different party, So you
(11:01):
can't have an FCC that's made up entirely of Democrats
or Republicans or whatever. It has to have a balance,
and by balance I mean at least one member has
to be the opposing party. That Act largely classified communications
companies as common carriers, that is, they fall under a
regulatory body, in this case, the FCC that enforces rules
(11:25):
to ensure that these carriers treat everyone fairly. A common
carrier can't deny service on the grounds of discrimination. For example,
it can't be that two people show up and one
person is allowed to use the service and the other
one isn't, and there's no legal reason for the discrimination.
This concept goes all the way back to the railroads.
(11:46):
So for communications networks, it helped create an environment in
which telephone companies couldn't deny access to their own lines
to other companies. And that's good because you didn't want
a situation where the only folks you could talk to
on the phone would be fellow customers of the same
phone company you belong to. The Communications Act of nineteen
thirty four set out these common carriage rules in the
(12:09):
section called Title iiO. Now, there were seven sections or
titles in the nineteen thirty four Act, and Title two
are the ones that are subject to regulation under the
authority of FCC. However, a bunch of other communications services
were deemed different enough from these to fall under Title I,
(12:31):
which did not allow the FCC the authority to regulate them.
So certain services were considered immune to this like they
were exceptions to regulation. And largely the thought was that
regulation could potentially inhibit growth and innovation, and therefore these
(12:53):
younger forms of communication should not be stifled by regulation.
And then Title II was a different story. Now, over
the years, some of the measures of the nineteen thirty
four Act had unintended consequences. For example, it helped the
rise of monopolies, namely AT and T, which essentially had
a total monopoly on the phone industry in the United
(13:16):
States until it was forced to break up into several
other companies in the nineteen eighties. That story is its own,
super complicated mess, and it goes beyond what we'll talk
about here. Things got more complicated with the invention of
cable television and other innovations, and you had weird rules
that would allow phone companies to do one thing and
cable companies to do something else. And we were rushing
(13:39):
toward an era where everybody was essentially allowing digital information
to pass over their networks, and yet there were different
rules in place as to which companies could do what.
So things were getting messy, so the government would try
to fix it, and it got messier. I'll explain more
after we come back from this quick break, Okay. So
(14:11):
cable companies first emerged in the late forties and really
grew in like the seventies and eighties, and there were
some amendments to the Communications Act that changed things a
little bit, but what was really needed was a new
approach to telecommunications and that's when we got the Telecommunications
Act of nineteen ninety six. So this was the first
(14:33):
major rewrite of communication law in more than sixty years.
This Act was meant to ease off on some regulations
in an effort to encourage more competition in the industry.
And it gets way more complicated from there. And a
full disclosure, I am not a lawyer. Waiting through the
mountains of documents to get a firm handle on these
various designations would take me ages. So I'm actually relying
(14:55):
heavily on the work of other people here, and trust me,
like I was following up and trying to go down
to other rabbit holes and find, you know, things that
I could specifically cite. And it got hard. A lot
of sources out there make some pretty general claims that
I think mostly are correct, but they get details wrong.
(15:17):
And that's infuriating because I don't have a month to
just read legal documents to figure out what's the best
way to communicate this is. So I'm going to be
painting in some pretty broad strokes. But in nineteen ninety six,
the Internet was still a pretty young entity, at least
to the general public. I mean, most of the general
(15:37):
public had no idea what the Internet was before the
World Wide Web started to take shape, and even then,
the web was a pretty niche interest area, mostly like
students and some businesses and government agencies. So we're ignoring
the fact that you folks had been working on the
(15:58):
network of networks for a couple of decades at this point.
I mean, the Internet wasn't like it was brand new, period.
It was just something that for a lot of people
was an unknown entity until really the nineties. We were
just starting to gear up toward the fervor that would
lead to the dot com bubble in nineteen ninety six,
and so there was kind of a need to address things.
(16:18):
The nineteen ninety six Act made a lot of changes.
It made it okay for different types of companies to
jump into the business that was usually restrained for other industries.
So what this really meant was that two giant industries
were able to suddenly compete against one another. So you
(16:39):
had telephone companies which normally just offered telephone services, but
now because of the way that information could travel, could
actually also offer up video channels to subscribers. Then you
had cable companies that said, hang on, we can offer
telephone services to our customers. Dogs and cats living together,
(17:00):
mass hysteria. And it was not clear at first whether
or not it would be legal for these industries to
kind of branch out and to start to incorporate the
services of other industries into their own. This was a
muddy ground. The Act also defined, and I use the
(17:22):
term loosely, the concept of information services. So these are
services that are all about sending, retrieving, storing information across
telecommunications services. So they're all the companies that facilitate information
moving from one point to another along various communication lines.
(17:43):
By the way, communication lines aren't always physical lines because
they this can include stuff like radio signals and that
kind of thing. Now, information services would fall under Title
one services. That would mean the FCC would not have
the legal authority to regulate any business that was classified
(18:03):
as Title one. So if a business were deemed to
be about information services, about the facilitating of information moving
across networks, they'd be Title one and the FCC couldn't
burst in and tell them how to do stuff. Now,
putting aside the complicating factor that a lot of companies
that facilitate the movement of information also own the infrastructure
(18:26):
that the information is moving across, that they are a
telecommunications company, it would mean that if they were deemed
an information services company, the FCC would not be able
to weigh in on their business, even though they also
would perform as a telecommunications company. At least the FCC
couldn't do so with any actual authority. The FCC could try,
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but then the company could sue the FCC, take it
to the courts, and the courts would determine whether or
not the FCC actually had the authority to regulate, and
this began to raise concerns in the field of network communications.
So keep in mind that back in the nineties and
even into the early two thousands, folks weren't too concerned
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about where the Internet was going yet, because it was
still fairly primitive, websites weren't particularly sophisticated. We had only
seen hints at what would become the uses that would
demand increasing amounts of bandwidth. So you weren't going to
be able to watch an ultra high definition movie on
streaming back in two thousand. For example, services like YouTube
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wouldn't come along until the mid two thousands. But even
though most uses of the Web and the Internet weren't
super bandwidth heavy, some people were starting to get a
little concerned about the lack of rules and regulations for
ISPs to follow. So they could see the writing on
the wall, ISPs would have an incentive to manage demand
(19:55):
on their networks. Now you can manage demand a lot
of different ways. You could do is you could try
and build out your infrastructure so it can handle more traffic,
but that requires a huge investment to do. Another thing
you could do is you could insert impediments to heavy
duty users of the Internet. You know, maybe slow down
stuff that would have a really heavy demand on the
(20:17):
bandwidth of your network, just throttle it so that way
everybody else can still use your network without having their
experience impacted as a result. Heck, maybe you identify something
that's causing huge spikes and Internet traffic across your network
and you just block it entirely. It's not like the
FCC could do anything about it because your title one service. Baby.
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They would come down and say, hey, you can't block
this content, and you'd just say, yeah, I can, because
you can't stop me. You don't have the authority to
do it. Also, keep in mind this was the time
when peer to peer networks and piracy were starting to
go banana. That complicates things because not only did those
activities boost network activity right you started to see spikes
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in network traffic, you also had these massive entertainment studios,
some of which would end up merging with these ISPs
that were threatening to bring down the hammer of thor
on anyone who facilitated the illegal sharing of intellectual property.
So you had the internal pressure of wanting to keep
your network moving smoothly. You had external pressures saying, hey,
(21:26):
there's a lot of illegal activity going across your network
and if you don't do something about it, there's going
to be a problem. And it all led to concerns
that again, the entire landscape of Internet access in the
United States could become unfair, uneven, fractured. Even so, tons
of cable companies really pushed the FCC to classify their
(21:47):
services as Title I, as information services in other words,
rather than Title two, which would mean they would be
a carrier service or a cable provider as defined under
the rarely mentioned Title three. So Title two common carriers
essentially Title III cable provider. The cable companies were saying, Oh,
we're not cable providers. We're information services. That's really what
(22:10):
we are. Yeah, some of us, some of our customers
are using our services to watch cable, but we're just
information services. We fall under Title I, and that would
mean that these cable companies could operate under less regulation, which,
to be fair, meant they could get away with a
whole lot more shenanigans than if they were forced to
play by a more strict set of rules. Now, some
(22:30):
would argue the looser regulations would give companies the chance
to create better services for customers, and that it could
lead to greater competition between providers in an effort to
find the best strategy to make a profit. It just
didn't turn out to do that. But yeah, this is
often an argument you will hear against regulation, the fear
that regulation will stifle competition and innovation, and as a result,
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none of us get the really cool new stuff that
we would get if the government would just back the
heck off. Problem is, when the government does back the
heck off, often what we see as one company start
to dominate an industry, and then there's no incentive for
the company to innovate because that company already has all
the customers, Like, you don't need to win the customers.
(23:15):
You've got them all, So where's the incentive to do better.
It's a very complicated thing. And of course things got
even more messy because the FCC agreed that cable based
ISPs would fall under Title IE, and this angered other
types of ISPs like DSL providers. Right, so a cable
company that was an Internet service provider would be a
(23:38):
Title one service, but a DSL company that provided Internet
service would be considered a Title TiO entity, which meant
the DSL companies were saying, hey, you're giving cable companies
an unfair advantage. You're not imposing these rules on them,
but you are on us. Where's the logic in that?
(23:59):
So the whole matter went to court, and things kind
of flip flopped around for a bit. At one point,
the court found that the FCC had misclassified cable ISPs
and said that they had to classify cable companies as
Title TiO because they were clearly telecommunications companies and not
just information services. And then the cable industry appealed this decision.
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The whole thing ultimately went to the Supreme Court, and
the Supreme Court, led by Clarence Thomas, overturned that decision
and said ISPs belong in the realm of Title I,
that the FCC did not make a mistake. Clarence Thomas
at some point allegedly said he regretted that decision, which
I mean the fact that he's capable of self reflection
(24:42):
should be a matter to celebrate, I guess, but doesn't
change the fact that that decision became the president. So
cable companies were Title IE, DSL was Title II. Now
by this time you had lawmakers in the US realized
that without certain protections in place, it was possible that
the whole Internet would become a fragmented, broken landscape, that
some ISP customers could have one experience and others would
(25:06):
have a much more inferior one because of these various
throttle rules and blocking and all that kind of stuff.
Maybe one ISP has access to most of the Internet
and another one doesn't, or maybe a powerful company potentially
stifles another one, thus killing innovation, doing the opposite of
what everyone was hoping the Title I classification would do. So,
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the FCC came up with some basic ideas that would
form the foundation of net neutrality. So this was around
two thousand and four, pretty late in the game, almost
a decade after the Telecommunications Act was passed, and these
net neutrality principles were fairly straightforward. One said that a
customer should be able to access whatever information they want
(25:53):
on the Internet, provided that the information is legal. You know,
there were exceptions for stuff like pirated content, for example,
So it wasn't that you could access everything no matter
what your ISP was, but rather, if it was legal,
the ISP should not block a customer's access to that information.
The bit about using whatever device you wanted was in
(26:14):
those guidelines too, that an ISP shouldn't be able to
say no, you can't use x device. You have to
buy why device from us. That would be against the
principles of net neutrality. Plus consumers should be able to
use whatever applications they wanted, again, assuming those applications are legal,
and other similar principles like the basic ideas behind net neutrality,
and they're great, but it didn't change the fact that
(26:36):
the FCC didn't have the actual authority to enforce these
principles on any entity that was designated as Title I. Also,
by this time, DSL companies had successfully campaigned to become
reclassified under Title one, so we no longer had DSL
as Title II, and cable was Title one. Now both
were Title I services. So in other words, the FCC
(26:59):
was saying, hey, everybody, you got to play fair, but
they didn't have any actual authority to make anyone play fair.
It's like if a teacher were telling a kid you can't,
you know, no running, and the kids that you're not
my dad. This became really clear in twenty ten when
the FCC lost court cases where the agency had tried
to assert limited authority against Comcast and was found that
(27:22):
they couldn't do that. Now, the case was that Comcast
had been discovered to have throttled and perhaps even blocked,
some BitTorrent traffic on its networks, and that obviously goes
against the principles of net neutrality. Now, quick word about BitTorrent.
BitTorrent is a protocol for decentralized file sharing through peer
to peer connections. And to put it simply, imagine you've
(27:44):
got a network of ten computers. They're connected to each other.
Five of those computers have a specific file on them,
and your computer has just joined this network. You're the
tenth computer. You don't have that file. So what you
do is you download a torrent of that file, and
that torrent allows a file train between you and the
five computers on the system that currently have that file.
Whatever connection is best is the one that's going to
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be active. If that connection for some reason slows down,
it can switch to another one. That way, you download
the file as quickly as you can through a distributed
decentralized peer to peer network is a quick way to
transfer large files, and as files propagate across the network,
it gets easier and faster for new devices to download
that file. Now, there is nothing inherently illegal about that.
(28:30):
It is just a way to distribute files. You can
use BitTorrent to download all sorts of stuff, including free
software that has no restrictions on how it's shared, so
BitTorrent is just a means of conveyance. That being said,
one of the most popular uses of the technology was
the downloading of copyrighted material hiracy in other words, So
(28:50):
despite the fact that BitTorrent is really just a protocol
for filed transfers, in most circles, it became synonymous with piracy.
And so I imagine that that's why Comcasts started blocking
BitTorrent traffic on its network. And that means it would
affect you even if you weren't a content pirate, you
were just using BitTorrent to get some legitimate file. There
(29:11):
was a whole lawsuit about that, and it's kind of
when the FCC stepped in and said, hey, Comcast, you
did a bad thing, and Comcast was like, yo, you
can't say that because we're Titled I, you have no
power over us. And the courts ultimately found that indeed,
the FCC had no power over Comcasts because years earlier,
the FCC decided that companies like Comcast are Title I
(29:33):
entities and by definition, the FCC had no authority over them.
So things were starting to look like there needed to
be a big change. We'll talk about that more when
we come back from this break. All right, we're up
(29:56):
to twenty ten. That's when the FCC introduced some new
principles elected under a policy that the FCC called the
Open Internet Order, and these largely followed the earlier net
neutrality principles that were set out in two thousand and four,
saying that ISPs need to be clear and transparent about
their services so that customers can make informed decisions when
(30:16):
choosing an ISP or when evaluating their existing ISP, like
they couldn't just hide stuff away in other words, Also,
the FCC reiterated that ISPs should not block any content
or devices from their networks. They also introduced similar rules
for mobile carriers that were now offering ISP services, and
there were some other stuff in the guidelines too, But
(30:37):
the rules didn't magically change ISPs from Title IE to
Title two, so you could say the guidelines didn't even
really mean anything because the FCC still lacked the ability
to enforce the rules. Yes, technically ISPs needed to be
more transparent, but when the FCC doesn't have the authority
(30:58):
to enforce those rules, then if they're not transparent, there's
not really anything you can do about it. So it's
like a rule that doesn't have any bite to it. Now.
I'm skipping over tons of stuff here, but generally speaking,
what we saw over the following years was a kind
of impasse. The FCC tried to find various workarounds to
try and enforce rules against ISPs, using language that had
(31:22):
been drafted back in the nineteen thirties to try and
justify its actions, saying, hey, because of the way this
is worded in nineteen thirty that means that we can
actually enforce this rule against a Title I service. Courts
were not entirely sympathetic to this strategy. It felt a
lot like someone trying to stretch a definition in order
to give legitimacy for their actions. So it just seemed
(31:44):
like there wasn't really a way forward unless there were
a total change in how the government treats ISPs, namely
that ISPs collectively would need to go from the unregulated
title IE Information Services category and then be reclassified into
the Title to Telecommunications Services and Common Carrier category. As
(32:07):
you might imagine, such a move would be pretty difficult
to pull off. The telecommunications industry is enormous, It is powerful,
it is willing to spend a whole lot of dollars
to lobby for favorable laws and regulations. If that weren't
the case, we would not be in a situation where
most Americans have very few choices when it comes to ISPs,
(32:28):
and we wouldn't have stories about how existing telecommunications companies
campaigned to keep news services from gaining access to things
like utility polls, which happened in the early days of
Google Fiber, or opposing things like municipal Wi Fi. So
around twenty fifteen, the FCC, with encouragement from then President
Barack Obama, set out to reclassify ISPs as titled to entities.
(32:52):
The industry immediately began to sue FCC to challenge this move. Ultimately,
the goal was to say that the FCC didn't have
the authority to reclassify ISPs, that it would need an
Act from Congress, and that would at least buy the
telecommunications company some time to you know, grease the wheels
and make sure Congress remain lenient toward them. It essentially
(33:14):
would mean that net neutrality would be dead in the water,
because unless you have an overwhelming majority in both Houses
of Congress and a sympathetic president, getting any legislation to
pass that would enforce net neutrality would be incredibly difficult.
But the FCC was going ahead with this plan, and
(33:39):
all of this as it was going on, had politics
shifting once again, because around this time that's when Donald Trump,
who made it very clear he was staunchly against reclassifying
ISPs as Title two, became President. Trump, while he was campaigning,
said that the move to classify ISPs as Title two
(33:59):
would somehow have a negative impact on free speech, particularly
free speech from conservative voices. I don't know what his
logic was, if you can call it that, on that argument, like,
I don't know how being classified as Title I would
suddenly make ISPs incapable of carrying conservative viewpoints. I don't
(34:22):
there's a disconnect there. I just don't understand it as
a justification for saying they shouldn't be Title two. There
are other arguments that I've heard against classifying ISPs as
Title two that at least have some grounding to them.
I don't know what the grounding is for that argument.
The new FCC under Trump's administration got to work rolling
(34:43):
back the changes of the previous FCC, So that's one
of the big challenges of the US as well, right,
because you have these agencies, these agencies like the FCC
where the role of the FCC it comes under appointment.
When position opens up, the current president can appoint someone
(35:03):
to that position. Often they have to get approval like
depending on the agency. But that means that as administrations change,
the nature of these agencies change, so the politics change,
the priorities change. In the case of Trump taking over
in the United States, it meant that the new FCC
(35:24):
had a diametrically opposed opinion about net neutrality, and the
whole reclassification of ISPs to Title two hit reverse. The
new FCC chair a Jitpi, pushed for ISPs to go
back to being Title one and to strip away many
of the rules that applied to net neutrality in the process.
ISPs would still technically need to follow transparency rules, at
(35:47):
least they're supposed to. But then again, when you don't
have an ability to enforce a rule, then the rule
is kind of just there for show. Right. If an
ISP wanted to, they could be transparent and say I'm
going to throttle this traffic from this other provider. That
would also be fine because again they just would be
disclosing what they were going to do, but there were
(36:09):
no rules to prevent them from doing it, so they
could just say, Hey, I'm gonna do this thing that
you don't like, and there's nothing you can do about it,
but I'm at least telling you about it, because I'm
supposed to like you could do that. But yeah, why
even bother disclosing if there are no teeth to the rules. Anyway,
during the Trump administration, the FCC's moved to put ISPs
(36:29):
into Title iiO classification when it totally in reverse. And
as we know, Trump then got voted out of office.
I mean, he disputes that, but the courts sure haven't.
And then with Joe Biden's administration, the tides have changed
yet again. A couple of years ago, Biden signed an
executive order that told the FCC to go back to
(36:50):
getting net neutrality rules restored. Congress has also tried a
couple of times to get a law going that would
create a stronger framework for net neutrality and to remove
some of the ambiguity of the FCC's role and the
extent of its authority. So some of these would give
FCC the express authority to do things like reclassify ISPs.
(37:11):
That has been one of those matters that cable companies
have argued that the FCC doesn't have the authority to
make that determination. Even though they made the initial determination
of who goes into what category, they're saying the FCC
doesn't have the authority to change that. So there have
been a couple of attempts from Congress to get laws
(37:31):
passed that would clear this up and make it less ambiguous,
but they haven't really gone anywhere. They've never passed both
the House and the Senate and then been signed into law.
There's always been opposition in one House or the other,
or just a lack of gumption to move the legislation forward,
so it hasn't gone anywhere. Typically, support for net neutrality
(37:54):
falls along party lines. Democrats aren't generally favorable toward it,
Republicans are generally against it, or rather Republicans are generally
against government regulation. Now, for being fair, you can definitely
see examples throughout the history of the United States where
regulation did have negative consequences, but you can also see
(38:15):
plenty of examples where a lack of regulation led to
huge problems. So I think it's safe to say that
it's complicated, and we humans are good at mess and
stuff up. So I don't think it's as easy to
say that regulation is good or regulation is bad, because
it has to be designed and enforced properly, and that's
(38:35):
a big that's a big if. Personally, I am in
favor of following rules that create a fair playing field
across all ISPs and content providers. I do not think
it's fair if an ISP decides it will only carry
a content provider's content if they pay extra. For example,
that this tiered internet approach I think is a bad
(38:57):
thing where they say, yeah, we'll carry your streams, but
you have to pay us extra if you want it
to go fast. I don't think that's a good idea.
I mean, it might not be a huge impediment to
a big company that's got a lot of resources, but
to smaller ones it could absolutely prevent them from being
able to be discovered by the customers of that particular ISP,
(39:17):
and it could be a death sentence. Like imagine if
a restaurant opened on a road and the roads were
all suddenly converted to private ownership, and the owner of
that road said that the restaurant has to cover the
costs of people going to it, Like it has to
pay for people to be able to drive down the
(39:38):
road and park at that restaurant. That would probably be
the death knell of that restaurant. So that's kind of
the similar concern about the tiered approach. And also, like
I said before, another big concern is that a lot
of ISPs are also enormous content providers themselves, So what
(40:01):
stops them from giving themselves preferential treatment while trying to
restrict everybody else. So once again, let's talk about Comcast.
It is a huge telecommunications company, it's an enormous media company.
In twenty eleven it became the parent company to NBC Universal.
So if Comcast decided to give its own streaming service,
(40:23):
you know, like Peacock a boost and then throttle traffic
from Max for example, that's the streaming service from Warner
Brothers Discovery previously known as HBO Max, well, that seems
like a pretty clear anti competitive move right, And generally speaking,
the US has policy that's against companies behaving in anti
competitive ways. At least that's the ideal. Whether the government
(40:47):
actively pursues that ideal tends to depend upon whom's in
charge and their opinions toward regulation. Right now, we're seeing
a much more active FCC as well as an SEC.
Like all the initial agencies out there that are related
to things like fairness in the market, a lot of
them are taking a much more firm stance against anti
(41:09):
competitive behavior Right now, that's the current attitude in US government,
but that doesn't mean it's going to be the same.
In another couple of years, it may completely change. That's
one of the reasons why this is so complicated is
because there's not a steady through line of support. But
that's kind of the update on net neutrality. The matter
(41:31):
is extremely complicated. I'm not going to pretend that I
have a handle on all the nuanced components. Like I said,
I do think there's some logical arguments that criticize net neutrality,
or at least how government regulation can create new problems
while trying to address existing ones. I just feel like
end consumers in the US tend to be the real
(41:51):
victims in this war. And now we should probably talk
a little bit more about the scandal that actually prompted
this whole episode in the first so, as I mentioned earlier,
the attorney General for the State of New York has
been going after several companies that sought to skew the
public comments around net neutrality back during adjut Pie's crusade
(42:12):
to reverse the reclassification of ISPs as Title II services.
So when the FCC makes these kinds of determinations, when
they're about to vote on something, they will often open
matters up for public comment. This gives the general public
the opportunity to share their thoughts about issues in communication
systems that ultimately will affect them. Now. Typically, the FCC
(42:34):
will create a website for an issue, and then it
will urge people to go to that website and to
leave their thoughts there. These sites are open for a
set amount of time, and at the end of that time,
the comments are closed off and the FCC reviews them
before they make their vote. They have no obligation to
obey public opinion, but the idea is that the FCC
can take that public opinion into consideration before they vote
(42:57):
on a matter. If they say, like, Wow, the the
US public is overwhelmingly against this, that might make them
think twice into voting it into action. Well, when it
came time to open up public comments on repealing the
title to reclassification of ISPs. It appears that the broad
band industry turned to some generating firms to help get
(43:20):
public support for nixing net neutrality, for reversing that decision
or reversing the reclassification. Allegedly, the broadband companies were saying, hey,
can you like generate some messaging that is going to
convince yahoos on the Internet that they don't really want
net neutrality, And so they paid these companies to do that,
and the companies allegedly said, yes, we can do that.
(43:42):
But instead what they allegedly did, I mean, the New
York Attorney General Office said they absolutely did it was
they impersonated around one and a half million people and
they went to the FCC website and posted support for
appealing net neutrality rules. By the way, this was actually
suspected while it was going on. There were folks who
(44:02):
were keeping an eye on those public comments, and there
were lots and lots of articles back in twenty seventeen
that many of the comments that were being left supporting
this move to strip net neutrality rules were actually bogus,
that these were fake comments that were supporting an unpopular policy.
The Attorney General's office had secured agreements with three different
(44:25):
companies to hand over more than half a million dollars
in fines for participating in this scheme. Now, if you
ask me, those three companies got off lightly because I'm
sure you would be upset to find out that some
company somewhere had posted something online while claiming to be you,
particularly if they were saying something that you adamantly disagree with,
(44:48):
and you might wonder how bad could it all be?
Like one and a half million impersonated people, That is
a lot, there's no denying that. But how bad is
that in the overall scheme? Of the comments that left
on the FCC well, according to an investigation, there were
around twenty two million comments left on the FCC request
(45:08):
for public comment, and an investigation in twenty twenty one
uncovered that out of those twenty two million comments, eighteen
million of them were fake. So the vast majority of
comments left were fake ones trying to skew the results
and not trying they did skew. I mean, that's that's
(45:30):
the vast majority of the comments left were left in
order to create this message that the public wanted the
title to reclassification repealed. So yeah, it is a rigged game.
I mean, that is the definition of a rigged game.
It is rigged, and the penalties for rigging the game
are minuscule. Half a million dollars spread across three companies
(45:53):
is nothing. Plus even with that, it doesn't reverse the
decisions that were made, even though those decisions at least
partly relied on fake public opinion to justify the decision,
So the results of that fakery are still in play.
Like that doesn't change at all. You're like, shame on
(46:13):
you for fooling everyone. But the decisions that were made
based upon those false comments those stand so also interesting.
By the way, at the time, back in twenty seventeen,
when all this was happening, ajit Pie resisted calls to
investigate the comments. But then, I mean, if fake comments
are in support of your position, I guess you don't
(46:34):
have much of an incentive to investigate if those comments
are real or not because they're supporting your side. So yeah,
it is an ugly business. Again, Personally, I'm in favor
of net neutrality. I am interested in some of the
arguments against it, and again, I think a lot of
that comes back to how government regulation has been poorly
(46:55):
designed and implemented in the past often can lead to
corruption as well. Well, I mean, it's it just comes
down to the fact that some people will see a
system and figure out how they can personally profit off
of it, even if it means everyone else suffers in
the process. So yeah, fun times. I don't I'm not
ever going to say net neutrality is totally dead, nor
(47:17):
am I ever going to say it is protected forever
and ever, because as we have seen over the last
two decades, things can change quickly and dramatically, so I
suspect it will really depend upon whomever's in charge and
what the prevailing attitude towards the concept is at the time.
So I'm sure in ten years, if I'm still doing
(47:37):
this show, I will revisit this and have yet another
look back on net neutrality. That's it. I hope you're
all well and I'll talk to you again really soon.
Tech Stuff is an iHeartRadio production. For more podcasts from iHeartRadio,
(47:59):
visit the iHeart Radio app, Apple Podcasts, or wherever you
listen to your favorite shows.
Welcome to Tech Stuff, a production from iHeartRadio. Hey there,
and welcome to tech Stuff. I'm your host, Jonathan Strickland.
I'm an executive producer with iHeartRadio and how the tech
are here? So several years ago, during the Trump administration
(00:26):
here in the United States, the Federal Communications Commission, or FCC,
held a vote to repeal an earlier set of rules
called the Open Internet Order. The board of the FCC,
made up of five appointees, voted three to two to
repeal those rules, despite the fact that there were concerns
(00:49):
there was hanky panky going on when the FCC sought
out public opinion on the matter. Currently, the Attorney General
for the state of New York is composing fines on
several companies found to have been guilty of essentially stuffing
the ballot boxes. As it were, These companies apparently impersonated
more than a million US citizens posting fake comments to
(01:13):
the FCC that were in favor of the repeal of
these rules. Considering that the FCC justified its vote on
the matter at least partly and it being a reflection
of the will of the people, this is bad and hey,
if you have to rig a system in order to win.
Then by definition, you're really a loser. So I thought
(01:35):
maybe we'd look back on what net neutrality is. What
is that concept? Why is there a debate about net neutrality?
Because there is, And while I am firmly in the
net neutrality camp, I acknowledge there are points being made
by people who are against net neutrality that you can't
just wave off. There are some valid points on the
(01:56):
other side. But what do the difference have to say
about net neutrality? Why is it tricky for the FCC
to enforce net neutrality? And how does the presence or
absence of net neutrality affect people like you and me? Now,
when I say you and me, I mainly mean people
here in the United States for this specific case, but
(02:18):
there are other places where this is an issue too.
I mean, obviously there are places in the world where
the government takes a much more active role in what
people can or cannot access on the internet. Here in
the US, Ideally you're supposed to be able to access
pretty much anything, but that's not necessarily how it turns out.
So first, let's define net neutrality. When you boil it down,
(02:42):
net neutrality is all about treating the ones and zeros
that are zipping across the Internet as if they're all
the same, which, by the way, some of the founders
of the or you know, people who created the protocols
of the Internet, say was never their intent. Vince Surf
and Bob conn have both said that they never intended
for all packets to necessarily be treated the same when
(03:03):
they were building out TCPIP protocols, which is interesting. Net
neutrality means that the various entities that own the infrastructure
or the pipes if you are a series of tubes,
if you like. If we're going to go way back
into the analogies of the Internet anyway, net neutrality says
(03:24):
that the companies that own that infrastructure should allow traffic
to flow through those pipes no matter where that traffic
originated from. So there should be no preferential treatment. There
should be no slowing of someone else's zeros and ones,
there should be no blocking a competitor from accessing your infrastructure.
It's meant to keep the Internet a machine that lets
(03:46):
information go to wherever it needs to go to without
being hindered along the way. This definition has actually expanded
a little bit over the years. Back when folks were
first starting to talk about net neutrality. Really, the only
way you could access the Internet was by computer, the
only meaningful way that most people could access was by computer. However,
since then, we've had a revolution of devices that can
(04:08):
tap into the network of networks that include smartphones and
tablets and Internet of Things devices, even some vehicles or
accessing information on the Internet. So another element of the
concept of net neutrality tends to be that you should
be able to access information on the Internet no matter
what device you are using to do so. So, if
(04:28):
a company happens to own some of the infrastructure of
the Internet, and also happens to be involved in the
creation of hardware, it would be against the principles of
net neutrality for that company to allow its own devices
access to its pipes. But did I entry to anyone else.
So in other words, let's say that you have an
ISP and the ISP is offering to lease you a
(04:54):
modemen router. So as part of your service, you can
essentially rent a mode and a router from this company,
which means that you are adding to your monthly bill. However,
you could just go out and buy a modem and
a router and then have that connected to your service,
(05:14):
which might require some extra steps to get it activated
because it's not part of the proprietary system, but it
should be fine. The ISP should not block you from
using some other motiven router just because it doesn't come
from them, and that would in turn mean you would
spend less on your monthly ISP bill because you're not
(05:35):
renting from them. One then neutrality says is that such
an ISP couldn't come out and say no, no, no, no,
you have to use our stuff or you can't use
anything else. These ideas are not just abstract concepts. Many
companies involved in at least some part of the Internet
infrastructure are also content providers. In other words, they don't
(05:56):
just own the pipes that stuff is moving through, they
create some of the stuff that's going through those pipes.
So one of the big examples centering around net neutrality
for years was that a company like Comcast, the largest
telecommunications company in the world, which has its own online
content products that's putting it lightly because they own NBC Universal,
(06:18):
they might purposefully slow down or block traffic coming from
some other content service like Netflix, And so that would
mean if you're a Comcast customer, and you're trying to
connect to Netflix, you might end up hitting some some
traffic slowdown, like things might take a while to buffer
before you can watch them. But curiously, if you were
(06:40):
to switch to Comcasts owned and operated streaming services, there's
no such slowdown. It just loads super fast and you
can watch without problems. So potentially that could drive customers
to subscribe to Comcast's own services and to not subscribe
to competitors, which seems to be a little bit anti competitive, right,
(07:03):
I mean, why make a better product if you can
just block your customers from getting to a competitor, Right,
You don't need to make anything great if you can
just prevent anyone from having a choice. If you're the
only game in town, you don't have to make your
game better. And you might think, hey, that does sound
kind of anti competitive, and you're absolutely right it is.
And keep in mind that here in the United States,
(07:25):
many people have very few options when it comes to ISPs. So,
for example, I live in an area. I am in
the city of Atlanta, not just like in metro Atlanta.
I'm in the city and I have precisely one option
when it comes to a provider that can give me
(07:45):
speeds higher than one hundred and fifty megabits per second.
So one option is not an option, right, That's it.
That's all I've got. The other quote unquote options are
for significantly slower speeds. So I could go with a competitor,
but one and I would not be paying significantly less,
and two, I would be getting a service that is
significantly slower. So if I go to a site by
(08:08):
the way that checks for providers based on my ZIP code,
I get tons of options for insanely fast connectivity, like
way faster than what I actually have. But if I
actually go through the steps to get to a point
where I would order such a service, by the time
you get to the last step, you get a message
that essentially says we're sorry that service isn't available at
(08:29):
your location or something like that, which just shows that
I am in that position where that a lot of
people are in in the United States where you do
not have options when it comes to your choice or provider,
so there is no competition in your particular area and
you're left with whatever is there. And that means that
(08:50):
you know, if I don't have a choice in provider,
if I want a good broadband speed, and if that
provider were to decide to discriminate against other competes editors,
I just wouldn't be able to get that content, or
at least it would be a real hassle for me
to get that content. I wouldn't have an option to
view that in any other way. Even if I wanted
to subscribe and I wanted to be a paying customer,
(09:12):
I wouldn't be able to see, say, the stuff on
Netflix if Comcast decided, no, we're going to block Netflix's content.
So net neutrality is meant to make sure that doesn't happen,
where you don't have a fractured internet where depending upon
your ISP you can access certain columns of content but
(09:32):
not others. And if you're on a different ISPs, it's
a totally different shakedown of what you can and can't access.
It becomes a less useful tool, right, the Internet becomes
broken at that point. If you and another person are
on two different services, you have two totally different experiences
of what the Internet is because of those restrictions. That's
(09:54):
what net neutrality is supposed to prevent. Now let's get
into the complicated legal quagm around net neutrality. So here
in the US, we've got ourselves a handy dandy law
called the Communications Act of nineteen thirty four. And yes,
in order to understand net neutrality in its path through
the US, we have to start nearly a century ago.
In fact, technically we could go back even further and
(10:16):
go back beyond a century to talk about stuff like railroads,
which I guess you could say laid the track for
some of the concepts around net neutrality. But I'm going
to be kind, I'm not going to go back quite
that far. So the Communications Act of nineteen thirty four
set a whole bunch of ground rules to try and
untangle the chaotic mess that was threatening to make communication
(10:38):
an unfair and uneven landscape. The Act sets out rules
for assigning frequencies for broadcasts and coming up with rules
for stuff like commercials and setting various standards. And it
also established the Federal Communications Commission or f c C, which,
by the way, in its rule states that at least
one member must be of a different party, So you
(11:01):
can't have an FCC that's made up entirely of Democrats
or Republicans or whatever. It has to have a balance,
and by balance I mean at least one member has
to be the opposing party. That Act largely classified communications
companies as common carriers, that is, they fall under a
regulatory body, in this case, the FCC that enforces rules
(11:25):
to ensure that these carriers treat everyone fairly. A common
carrier can't deny service on the grounds of discrimination. For example,
it can't be that two people show up and one
person is allowed to use the service and the other
one isn't, and there's no legal reason for the discrimination.
This concept goes all the way back to the railroads.
(11:46):
So for communications networks, it helped create an environment in
which telephone companies couldn't deny access to their own lines
to other companies. And that's good because you didn't want
a situation where the only folks you could talk to
on the phone would be fellow customers of the same
phone company you belong to. The Communications Act of nineteen
thirty four set out these common carriage rules in the
(12:09):
section called Title iiO. Now, there were seven sections or
titles in the nineteen thirty four Act, and Title two
are the ones that are subject to regulation under the
authority of FCC. However, a bunch of other communications services
were deemed different enough from these to fall under Title I,
(12:31):
which did not allow the FCC the authority to regulate them.
So certain services were considered immune to this like they
were exceptions to regulation. And largely the thought was that
regulation could potentially inhibit growth and innovation, and therefore these
(12:53):
younger forms of communication should not be stifled by regulation.
And then Title II was a different story. Now, over
the years, some of the measures of the nineteen thirty
four Act had unintended consequences. For example, it helped the
rise of monopolies, namely AT and T, which essentially had
a total monopoly on the phone industry in the United
(13:16):
States until it was forced to break up into several
other companies in the nineteen eighties. That story is its own,
super complicated mess, and it goes beyond what we'll talk
about here. Things got more complicated with the invention of
cable television and other innovations, and you had weird rules
that would allow phone companies to do one thing and
cable companies to do something else. And we were rushing
(13:39):
toward an era where everybody was essentially allowing digital information
to pass over their networks, and yet there were different
rules in place as to which companies could do what.
So things were getting messy, so the government would try
to fix it, and it got messier. I'll explain more
after we come back from this quick break, Okay. So
(14:11):
cable companies first emerged in the late forties and really
grew in like the seventies and eighties, and there were
some amendments to the Communications Act that changed things a
little bit, but what was really needed was a new
approach to telecommunications and that's when we got the Telecommunications
Act of nineteen ninety six. So this was the first
(14:33):
major rewrite of communication law in more than sixty years.
This Act was meant to ease off on some regulations
in an effort to encourage more competition in the industry.
And it gets way more complicated from there. And a
full disclosure, I am not a lawyer. Waiting through the
mountains of documents to get a firm handle on these
various designations would take me ages. So I'm actually relying
(14:55):
heavily on the work of other people here, and trust me,
like I was following up and trying to go down
to other rabbit holes and find, you know, things that
I could specifically cite. And it got hard. A lot
of sources out there make some pretty general claims that
I think mostly are correct, but they get details wrong.
(15:17):
And that's infuriating because I don't have a month to
just read legal documents to figure out what's the best
way to communicate this is. So I'm going to be
painting in some pretty broad strokes. But in nineteen ninety six,
the Internet was still a pretty young entity, at least
to the general public. I mean, most of the general
(15:37):
public had no idea what the Internet was before the
World Wide Web started to take shape, and even then,
the web was a pretty niche interest area, mostly like
students and some businesses and government agencies. So we're ignoring
the fact that you folks had been working on the
(15:58):
network of networks for a couple of decades at this point.
I mean, the Internet wasn't like it was brand new, period.
It was just something that for a lot of people
was an unknown entity until really the nineties. We were
just starting to gear up toward the fervor that would
lead to the dot com bubble in nineteen ninety six,
and so there was kind of a need to address things.
(16:18):
The nineteen ninety six Act made a lot of changes.
It made it okay for different types of companies to
jump into the business that was usually restrained for other industries.
So what this really meant was that two giant industries
were able to suddenly compete against one another. So you
(16:39):
had telephone companies which normally just offered telephone services, but
now because of the way that information could travel, could
actually also offer up video channels to subscribers. Then you
had cable companies that said, hang on, we can offer
telephone services to our customers. Dogs and cats living together,
(17:00):
mass hysteria. And it was not clear at first whether
or not it would be legal for these industries to
kind of branch out and to start to incorporate the
services of other industries into their own. This was a
muddy ground. The Act also defined, and I use the
(17:22):
term loosely, the concept of information services. So these are
services that are all about sending, retrieving, storing information across
telecommunications services. So they're all the companies that facilitate information
moving from one point to another along various communication lines.
(17:43):
By the way, communication lines aren't always physical lines because
they this can include stuff like radio signals and that
kind of thing. Now, information services would fall under Title
one services. That would mean the FCC would not have
the legal authority to regulate any business that was classified
(18:03):
as Title one. So if a business were deemed to
be about information services, about the facilitating of information moving
across networks, they'd be Title one and the FCC couldn't
burst in and tell them how to do stuff. Now,
putting aside the complicating factor that a lot of companies
that facilitate the movement of information also own the infrastructure
(18:26):
that the information is moving across, that they are a
telecommunications company, it would mean that if they were deemed
an information services company, the FCC would not be able
to weigh in on their business, even though they also
would perform as a telecommunications company. At least the FCC
couldn't do so with any actual authority. The FCC could try,
(18:49):
but then the company could sue the FCC, take it
to the courts, and the courts would determine whether or
not the FCC actually had the authority to regulate, and
this began to raise concerns in the field of network communications.
So keep in mind that back in the nineties and
even into the early two thousands, folks weren't too concerned
(19:10):
about where the Internet was going yet, because it was
still fairly primitive, websites weren't particularly sophisticated. We had only
seen hints at what would become the uses that would
demand increasing amounts of bandwidth. So you weren't going to
be able to watch an ultra high definition movie on
streaming back in two thousand. For example, services like YouTube
(19:31):
wouldn't come along until the mid two thousands. But even
though most uses of the Web and the Internet weren't
super bandwidth heavy, some people were starting to get a
little concerned about the lack of rules and regulations for
ISPs to follow. So they could see the writing on
the wall, ISPs would have an incentive to manage demand
(19:55):
on their networks. Now you can manage demand a lot
of different ways. You could do is you could try
and build out your infrastructure so it can handle more traffic,
but that requires a huge investment to do. Another thing
you could do is you could insert impediments to heavy
duty users of the Internet. You know, maybe slow down
stuff that would have a really heavy demand on the
(20:17):
bandwidth of your network, just throttle it so that way
everybody else can still use your network without having their
experience impacted as a result. Heck, maybe you identify something
that's causing huge spikes and Internet traffic across your network
and you just block it entirely. It's not like the
FCC could do anything about it because your title one service. Baby.
(20:40):
They would come down and say, hey, you can't block
this content, and you'd just say, yeah, I can, because
you can't stop me. You don't have the authority to
do it. Also, keep in mind this was the time
when peer to peer networks and piracy were starting to
go banana. That complicates things because not only did those
activities boost network activity right you started to see spikes
(21:02):
in network traffic, you also had these massive entertainment studios,
some of which would end up merging with these ISPs
that were threatening to bring down the hammer of thor
on anyone who facilitated the illegal sharing of intellectual property.
So you had the internal pressure of wanting to keep
your network moving smoothly. You had external pressures saying, hey,
(21:26):
there's a lot of illegal activity going across your network
and if you don't do something about it, there's going
to be a problem. And it all led to concerns
that again, the entire landscape of Internet access in the
United States could become unfair, uneven, fractured. Even so, tons
of cable companies really pushed the FCC to classify their
(21:47):
services as Title I, as information services in other words,
rather than Title two, which would mean they would be
a carrier service or a cable provider as defined under
the rarely mentioned Title three. So Title two common carriers
essentially Title III cable provider. The cable companies were saying, Oh,
we're not cable providers. We're information services. That's really what
(22:10):
we are. Yeah, some of us, some of our customers
are using our services to watch cable, but we're just
information services. We fall under Title I, and that would
mean that these cable companies could operate under less regulation, which,
to be fair, meant they could get away with a
whole lot more shenanigans than if they were forced to
play by a more strict set of rules. Now, some
(22:30):
would argue the looser regulations would give companies the chance
to create better services for customers, and that it could
lead to greater competition between providers in an effort to
find the best strategy to make a profit. It just
didn't turn out to do that. But yeah, this is
often an argument you will hear against regulation, the fear
that regulation will stifle competition and innovation, and as a result,
(22:53):
none of us get the really cool new stuff that
we would get if the government would just back the
heck off. Problem is, when the government does back the
heck off, often what we see as one company start
to dominate an industry, and then there's no incentive for
the company to innovate because that company already has all
the customers, Like, you don't need to win the customers.
(23:15):
You've got them all, So where's the incentive to do better.
It's a very complicated thing. And of course things got
even more messy because the FCC agreed that cable based
ISPs would fall under Title IE, and this angered other
types of ISPs like DSL providers. Right, so a cable
company that was an Internet service provider would be a
(23:38):
Title one service, but a DSL company that provided Internet
service would be considered a Title TiO entity, which meant
the DSL companies were saying, hey, you're giving cable companies
an unfair advantage. You're not imposing these rules on them,
but you are on us. Where's the logic in that?
(23:59):
So the whole matter went to court, and things kind
of flip flopped around for a bit. At one point,
the court found that the FCC had misclassified cable ISPs
and said that they had to classify cable companies as
Title TiO because they were clearly telecommunications companies and not
just information services. And then the cable industry appealed this decision.
(24:20):
The whole thing ultimately went to the Supreme Court, and
the Supreme Court, led by Clarence Thomas, overturned that decision
and said ISPs belong in the realm of Title I,
that the FCC did not make a mistake. Clarence Thomas
at some point allegedly said he regretted that decision, which
I mean the fact that he's capable of self reflection
(24:42):
should be a matter to celebrate, I guess, but doesn't
change the fact that that decision became the president. So
cable companies were Title IE, DSL was Title II. Now
by this time you had lawmakers in the US realized
that without certain protections in place, it was possible that
the whole Internet would become a fragmented, broken landscape, that
some ISP customers could have one experience and others would
(25:06):
have a much more inferior one because of these various
throttle rules and blocking and all that kind of stuff.
Maybe one ISP has access to most of the Internet
and another one doesn't, or maybe a powerful company potentially
stifles another one, thus killing innovation, doing the opposite of
what everyone was hoping the Title I classification would do. So,
(25:31):
the FCC came up with some basic ideas that would
form the foundation of net neutrality. So this was around
two thousand and four, pretty late in the game, almost
a decade after the Telecommunications Act was passed, and these
net neutrality principles were fairly straightforward. One said that a
customer should be able to access whatever information they want
(25:53):
on the Internet, provided that the information is legal. You know,
there were exceptions for stuff like pirated content, for example,
So it wasn't that you could access everything no matter
what your ISP was, but rather, if it was legal,
the ISP should not block a customer's access to that information.
The bit about using whatever device you wanted was in
(26:14):
those guidelines too, that an ISP shouldn't be able to
say no, you can't use x device. You have to
buy why device from us. That would be against the
principles of net neutrality. Plus consumers should be able to
use whatever applications they wanted, again, assuming those applications are legal,
and other similar principles like the basic ideas behind net neutrality,
and they're great, but it didn't change the fact that
(26:36):
the FCC didn't have the actual authority to enforce these
principles on any entity that was designated as Title I. Also,
by this time, DSL companies had successfully campaigned to become
reclassified under Title one, so we no longer had DSL
as Title II, and cable was Title one. Now both
were Title I services. So in other words, the FCC
(26:59):
was saying, hey, everybody, you got to play fair, but
they didn't have any actual authority to make anyone play fair.
It's like if a teacher were telling a kid you can't,
you know, no running, and the kids that you're not
my dad. This became really clear in twenty ten when
the FCC lost court cases where the agency had tried
to assert limited authority against Comcast and was found that
(27:22):
they couldn't do that. Now, the case was that Comcast
had been discovered to have throttled and perhaps even blocked,
some BitTorrent traffic on its networks, and that obviously goes
against the principles of net neutrality. Now, quick word about BitTorrent.
BitTorrent is a protocol for decentralized file sharing through peer
to peer connections. And to put it simply, imagine you've
(27:44):
got a network of ten computers. They're connected to each other.
Five of those computers have a specific file on them,
and your computer has just joined this network. You're the
tenth computer. You don't have that file. So what you
do is you download a torrent of that file, and
that torrent allows a file train between you and the
five computers on the system that currently have that file.
Whatever connection is best is the one that's going to
(28:07):
be active. If that connection for some reason slows down,
it can switch to another one. That way, you download
the file as quickly as you can through a distributed
decentralized peer to peer network is a quick way to
transfer large files, and as files propagate across the network,
it gets easier and faster for new devices to download
that file. Now, there is nothing inherently illegal about that.
(28:30):
It is just a way to distribute files. You can
use BitTorrent to download all sorts of stuff, including free
software that has no restrictions on how it's shared, so
BitTorrent is just a means of conveyance. That being said,
one of the most popular uses of the technology was
the downloading of copyrighted material hiracy in other words, So
(28:50):
despite the fact that BitTorrent is really just a protocol
for filed transfers, in most circles, it became synonymous with piracy.
And so I imagine that that's why Comcasts started blocking
BitTorrent traffic on its network. And that means it would
affect you even if you weren't a content pirate, you
were just using BitTorrent to get some legitimate file. There
(29:11):
was a whole lawsuit about that, and it's kind of
when the FCC stepped in and said, hey, Comcast, you
did a bad thing, and Comcast was like, yo, you
can't say that because we're Titled I, you have no
power over us. And the courts ultimately found that indeed,
the FCC had no power over Comcasts because years earlier,
the FCC decided that companies like Comcast are Title I
(29:33):
entities and by definition, the FCC had no authority over them.
So things were starting to look like there needed to
be a big change. We'll talk about that more when
we come back from this break. All right, we're up
(29:56):
to twenty ten. That's when the FCC introduced some new
principles elected under a policy that the FCC called the
Open Internet Order, and these largely followed the earlier net
neutrality principles that were set out in two thousand and four,
saying that ISPs need to be clear and transparent about
their services so that customers can make informed decisions when
(30:16):
choosing an ISP or when evaluating their existing ISP, like
they couldn't just hide stuff away in other words, Also,
the FCC reiterated that ISPs should not block any content
or devices from their networks. They also introduced similar rules
for mobile carriers that were now offering ISP services, and
there were some other stuff in the guidelines too, But
(30:37):
the rules didn't magically change ISPs from Title IE to
Title two, so you could say the guidelines didn't even
really mean anything because the FCC still lacked the ability
to enforce the rules. Yes, technically ISPs needed to be
more transparent, but when the FCC doesn't have the authority
(30:58):
to enforce those rules, then if they're not transparent, there's
not really anything you can do about it. So it's
like a rule that doesn't have any bite to it. Now.
I'm skipping over tons of stuff here, but generally speaking,
what we saw over the following years was a kind
of impasse. The FCC tried to find various workarounds to
try and enforce rules against ISPs, using language that had
(31:22):
been drafted back in the nineteen thirties to try and
justify its actions, saying, hey, because of the way this
is worded in nineteen thirty that means that we can
actually enforce this rule against a Title I service. Courts
were not entirely sympathetic to this strategy. It felt a
lot like someone trying to stretch a definition in order
to give legitimacy for their actions. So it just seemed
(31:44):
like there wasn't really a way forward unless there were
a total change in how the government treats ISPs, namely
that ISPs collectively would need to go from the unregulated
title IE Information Services category and then be reclassified into
the Title to Telecommunications Services and Common Carrier category. As
(32:07):
you might imagine, such a move would be pretty difficult
to pull off. The telecommunications industry is enormous, It is powerful,
it is willing to spend a whole lot of dollars
to lobby for favorable laws and regulations. If that weren't
the case, we would not be in a situation where
most Americans have very few choices when it comes to ISPs,
(32:28):
and we wouldn't have stories about how existing telecommunications companies
campaigned to keep news services from gaining access to things
like utility polls, which happened in the early days of
Google Fiber, or opposing things like municipal Wi Fi. So
around twenty fifteen, the FCC, with encouragement from then President
Barack Obama, set out to reclassify ISPs as titled to entities.
(32:52):
The industry immediately began to sue FCC to challenge this move. Ultimately,
the goal was to say that the FCC didn't have
the authority to reclassify ISPs, that it would need an
Act from Congress, and that would at least buy the
telecommunications company some time to you know, grease the wheels
and make sure Congress remain lenient toward them. It essentially
(33:14):
would mean that net neutrality would be dead in the water,
because unless you have an overwhelming majority in both Houses
of Congress and a sympathetic president, getting any legislation to
pass that would enforce net neutrality would be incredibly difficult.
But the FCC was going ahead with this plan, and
(33:39):
all of this as it was going on, had politics
shifting once again, because around this time that's when Donald Trump,
who made it very clear he was staunchly against reclassifying
ISPs as Title two, became President. Trump, while he was campaigning,
said that the move to classify ISPs as Title two
(33:59):
would somehow have a negative impact on free speech, particularly
free speech from conservative voices. I don't know what his
logic was, if you can call it that, on that argument, like,
I don't know how being classified as Title I would
suddenly make ISPs incapable of carrying conservative viewpoints. I don't
(34:22):
there's a disconnect there. I just don't understand it as
a justification for saying they shouldn't be Title two. There
are other arguments that I've heard against classifying ISPs as
Title two that at least have some grounding to them.
I don't know what the grounding is for that argument.
The new FCC under Trump's administration got to work rolling
(34:43):
back the changes of the previous FCC, So that's one
of the big challenges of the US as well, right,
because you have these agencies, these agencies like the FCC
where the role of the FCC it comes under appointment.
When position opens up, the current president can appoint someone
(35:03):
to that position. Often they have to get approval like
depending on the agency. But that means that as administrations change,
the nature of these agencies change, so the politics change,
the priorities change. In the case of Trump taking over
in the United States, it meant that the new FCC
(35:24):
had a diametrically opposed opinion about net neutrality, and the
whole reclassification of ISPs to Title two hit reverse. The
new FCC chair a Jitpi, pushed for ISPs to go
back to being Title one and to strip away many
of the rules that applied to net neutrality in the process.
ISPs would still technically need to follow transparency rules, at
(35:47):
least they're supposed to. But then again, when you don't
have an ability to enforce a rule, then the rule
is kind of just there for show. Right. If an
ISP wanted to, they could be transparent and say I'm
going to throttle this traffic from this other provider. That
would also be fine because again they just would be
disclosing what they were going to do, but there were
(36:09):
no rules to prevent them from doing it, so they
could just say, Hey, I'm gonna do this thing that
you don't like, and there's nothing you can do about it,
but I'm at least telling you about it, because I'm
supposed to like you could do that. But yeah, why
even bother disclosing if there are no teeth to the rules. Anyway,
during the Trump administration, the FCC's moved to put ISPs
(36:29):
into Title iiO classification when it totally in reverse. And
as we know, Trump then got voted out of office.
I mean, he disputes that, but the courts sure haven't.
And then with Joe Biden's administration, the tides have changed
yet again. A couple of years ago, Biden signed an
executive order that told the FCC to go back to
(36:50):
getting net neutrality rules restored. Congress has also tried a
couple of times to get a law going that would
create a stronger framework for net neutrality and to remove
some of the ambiguity of the FCC's role and the
extent of its authority. So some of these would give
FCC the express authority to do things like reclassify ISPs.
(37:11):
That has been one of those matters that cable companies
have argued that the FCC doesn't have the authority to
make that determination. Even though they made the initial determination
of who goes into what category, they're saying the FCC
doesn't have the authority to change that. So there have
been a couple of attempts from Congress to get laws
(37:31):
passed that would clear this up and make it less ambiguous,
but they haven't really gone anywhere. They've never passed both
the House and the Senate and then been signed into law.
There's always been opposition in one House or the other,
or just a lack of gumption to move the legislation forward,
so it hasn't gone anywhere. Typically, support for net neutrality
(37:54):
falls along party lines. Democrats aren't generally favorable toward it,
Republicans are generally against it, or rather Republicans are generally
against government regulation. Now, for being fair, you can definitely
see examples throughout the history of the United States where
regulation did have negative consequences, but you can also see
(38:15):
plenty of examples where a lack of regulation led to
huge problems. So I think it's safe to say that
it's complicated, and we humans are good at mess and
stuff up. So I don't think it's as easy to
say that regulation is good or regulation is bad, because
it has to be designed and enforced properly, and that's
(38:35):
a big that's a big if. Personally, I am in
favor of following rules that create a fair playing field
across all ISPs and content providers. I do not think
it's fair if an ISP decides it will only carry
a content provider's content if they pay extra. For example,
that this tiered internet approach I think is a bad
(38:57):
thing where they say, yeah, we'll carry your streams, but
you have to pay us extra if you want it
to go fast. I don't think that's a good idea.
I mean, it might not be a huge impediment to
a big company that's got a lot of resources, but
to smaller ones it could absolutely prevent them from being
able to be discovered by the customers of that particular ISP,
(39:17):
and it could be a death sentence. Like imagine if
a restaurant opened on a road and the roads were
all suddenly converted to private ownership, and the owner of
that road said that the restaurant has to cover the
costs of people going to it, Like it has to
pay for people to be able to drive down the
(39:38):
road and park at that restaurant. That would probably be
the death knell of that restaurant. So that's kind of
the similar concern about the tiered approach. And also, like
I said before, another big concern is that a lot
of ISPs are also enormous content providers themselves, So what
(40:01):
stops them from giving themselves preferential treatment while trying to
restrict everybody else. So once again, let's talk about Comcast.
It is a huge telecommunications company, it's an enormous media company.
In twenty eleven it became the parent company to NBC Universal.
So if Comcast decided to give its own streaming service,
(40:23):
you know, like Peacock a boost and then throttle traffic
from Max for example, that's the streaming service from Warner
Brothers Discovery previously known as HBO Max, well, that seems
like a pretty clear anti competitive move right, And generally speaking,
the US has policy that's against companies behaving in anti
competitive ways. At least that's the ideal. Whether the government
(40:47):
actively pursues that ideal tends to depend upon whom's in
charge and their opinions toward regulation. Right now, we're seeing
a much more active FCC as well as an SEC.
Like all the initial agencies out there that are related
to things like fairness in the market, a lot of
them are taking a much more firm stance against anti
(41:09):
competitive behavior Right now, that's the current attitude in US government,
but that doesn't mean it's going to be the same.
In another couple of years, it may completely change. That's
one of the reasons why this is so complicated is
because there's not a steady through line of support. But
that's kind of the update on net neutrality. The matter
(41:31):
is extremely complicated. I'm not going to pretend that I
have a handle on all the nuanced components. Like I said,
I do think there's some logical arguments that criticize net neutrality,
or at least how government regulation can create new problems
while trying to address existing ones. I just feel like
end consumers in the US tend to be the real
(41:51):
victims in this war. And now we should probably talk
a little bit more about the scandal that actually prompted
this whole episode in the first so, as I mentioned earlier,
the attorney General for the State of New York has
been going after several companies that sought to skew the
public comments around net neutrality back during adjut Pie's crusade
(42:12):
to reverse the reclassification of ISPs as Title II services.
So when the FCC makes these kinds of determinations, when
they're about to vote on something, they will often open
matters up for public comment. This gives the general public
the opportunity to share their thoughts about issues in communication
systems that ultimately will affect them. Now. Typically, the FCC
(42:34):
will create a website for an issue, and then it
will urge people to go to that website and to
leave their thoughts there. These sites are open for a
set amount of time, and at the end of that time,
the comments are closed off and the FCC reviews them
before they make their vote. They have no obligation to
obey public opinion, but the idea is that the FCC
can take that public opinion into consideration before they vote
(42:57):
on a matter. If they say, like, Wow, the the
US public is overwhelmingly against this, that might make them
think twice into voting it into action. Well, when it
came time to open up public comments on repealing the
title to reclassification of ISPs. It appears that the broad
band industry turned to some generating firms to help get
(43:20):
public support for nixing net neutrality, for reversing that decision
or reversing the reclassification. Allegedly, the broadband companies were saying, hey,
can you like generate some messaging that is going to
convince yahoos on the Internet that they don't really want
net neutrality, And so they paid these companies to do that,
and the companies allegedly said, yes, we can do that.
(43:42):
But instead what they allegedly did, I mean, the New
York Attorney General Office said they absolutely did it was
they impersonated around one and a half million people and
they went to the FCC website and posted support for
appealing net neutrality rules. By the way, this was actually
suspected while it was going on. There were folks who
(44:02):
were keeping an eye on those public comments, and there
were lots and lots of articles back in twenty seventeen
that many of the comments that were being left supporting
this move to strip net neutrality rules were actually bogus,
that these were fake comments that were supporting an unpopular policy.
The Attorney General's office had secured agreements with three different
(44:25):
companies to hand over more than half a million dollars
in fines for participating in this scheme. Now, if you
ask me, those three companies got off lightly because I'm
sure you would be upset to find out that some
company somewhere had posted something online while claiming to be you,
particularly if they were saying something that you adamantly disagree with,
(44:48):
and you might wonder how bad could it all be?
Like one and a half million impersonated people, That is
a lot, there's no denying that. But how bad is
that in the overall scheme? Of the comments that left
on the FCC well, according to an investigation, there were
around twenty two million comments left on the FCC request
(45:08):
for public comment, and an investigation in twenty twenty one
uncovered that out of those twenty two million comments, eighteen
million of them were fake. So the vast majority of
comments left were fake ones trying to skew the results
and not trying they did skew. I mean, that's that's
(45:30):
the vast majority of the comments left were left in
order to create this message that the public wanted the
title to reclassification repealed. So yeah, it is a rigged game.
I mean, that is the definition of a rigged game.
It is rigged, and the penalties for rigging the game
are minuscule. Half a million dollars spread across three companies
(45:53):
is nothing. Plus even with that, it doesn't reverse the
decisions that were made, even though those decisions at least
partly relied on fake public opinion to justify the decision,
So the results of that fakery are still in play.
Like that doesn't change at all. You're like, shame on
(46:13):
you for fooling everyone. But the decisions that were made
based upon those false comments those stand so also interesting.
By the way, at the time, back in twenty seventeen,
when all this was happening, ajit Pie resisted calls to
investigate the comments. But then, I mean, if fake comments
are in support of your position, I guess you don't
(46:34):
have much of an incentive to investigate if those comments
are real or not because they're supporting your side. So yeah,
it is an ugly business. Again, Personally, I'm in favor
of net neutrality. I am interested in some of the
arguments against it, and again, I think a lot of
that comes back to how government regulation has been poorly
(46:55):
designed and implemented in the past often can lead to
corruption as well. Well, I mean, it's it just comes
down to the fact that some people will see a
system and figure out how they can personally profit off
of it, even if it means everyone else suffers in
the process. So yeah, fun times. I don't I'm not
ever going to say net neutrality is totally dead, nor
(47:17):
am I ever going to say it is protected forever
and ever, because as we have seen over the last
two decades, things can change quickly and dramatically, so I
suspect it will really depend upon whomever's in charge and
what the prevailing attitude towards the concept is at the time.
So I'm sure in ten years, if I'm still doing
(47:37):
this show, I will revisit this and have yet another
look back on net neutrality. That's it. I hope you're
all well and I'll talk to you again really soon.
Tech Stuff is an iHeartRadio production. For more podcasts from iHeartRadio,
(47:59):
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