[Update: shortly after this was written, the FCC released details about Chairman Wheeler’s “Protecting the Open Internet” proposal, which will be discussed here in later posts]
With the FCC expected to classify broadband access as a Title II common carrier service, while also preempting state restrictions on municipally-owned access networks, the Commission’s February 26 meeting is poised to launch a new era in U.S. communication policy.
To appreciate the significance of the Commission’s impending Title II decision, it’s useful to step back from the drama and details of today’s regulatory and market battles, and consider the agency’s upcoming vote from a historical perspective, starting with the Communications Act of 1934. I’d suggest that, viewed from that perspective, the FCC’s decision to treat broadband access under Title II is an attempt to replant the roots of communication law in the fertile ground of today’s First Amendment-friendly technology.
The Act’s stated purpose was:
“to make available, so far as possible, to all the people of the United States a rapid, efficient, nationwide, and worldwide wire and radio communication service with adequate facilities at reasonable charges.”
Given the relatively primitive technology of that era, the 1934 Act adopted different regulatory schemes for wireless broadcasting and wireline telephony, each designed to accommodate the technical constraints of the industry it was to regulate. Wireless broadcasting, constrained by technical interference among a cacophony of competing “voices,” was addressed by a system of exclusive licensing. This gave a relative handful of licensees First Amendment megaphones of unprecedented reach and power, in exchange for a vague and difficult-to-enforce set of “public interest” obligations.
Unwieldy at best, enforcement of broadcasting’s public interest regulations was largely abandoned in the 1980s under the Reagan Administration, which viewed deregulation as a much needed and broadly applicable solution to the nation’s economic problems. From that perspective, the best way to serve the public interest was, in most cases, to rely on the “magic of the market.” To the Administration’s first FCC Chair, Mark Fowler, the powerful broadcast and cable media were just more markets needing a healthy dose of deregulation. As he famously put it, television was “a toaster with pictures.”
My colleagues and I were interviewed this week about a report on global digital divides, published by McKensey,Inc’s Technology, Media and Telecom Practice, entitled ‘Offline and Falling Behind’. It is a very useful up-date on adoption of the Internet that can help refocus attention on over 4.4 billion people worldwide who are not online – over 60%. The interview was organised by The Media Consortium in San Francisco, enabling us to speak with a handful of reporters about the report.
One news story that drew from the interviews was a fascinating article by Mike Ludwig that focuses on the controversy over zero-rating, such as Wikipedia Zero, which enables mobile users in many parts of the developing Global South to access Wikipedia at no cost, given subsidies by a group of telecom companies in 34 countries. Some advocates of net neutrality are worried that zero-rating – as pro-social as it appears to be – could set a dangerous precedent that runs counter to net neutrality.
Ludwig’s article illustrates how the net neutrality debate can take on a very different character when moved in the global as opposed to the US context. It also illustrates that net neutrality could have some unintended consequences, such as undermining such schemes designed to bridge digital divides.
Professor Adam Candeub, Director of the Intellectual Property, Information & Communications Law Program in MSU’s College of Law, has organised a very promising event for the 2nd and 3rd of October, entitled ‘Public Domain(s): Law, Generating Knowledge in the Information Economy‘. In addition to Adam, speakers include: Johannes M. Bauer, Chairperson of the Department of Telecommunication, Information Studies, & Media, Michigan State University; John F. Blevins, Associate Professor of Law, Loyola University New Orleans College of Law; Bruce Boyden, Assistant Professor, Marquette University Law School; Daniel Brenner, Judge, Los Angeles County Superior Court; Annemarie Bridy, Alan G. Sheppard Professor of Law, University of Idaho College of Law; Jennifer Carter-Johnson, Associate Professor, Michigan State University College of Law; James M. Chen, Justin Smith Morrill Chair in Law, Professor, Michigan State University College of Law; Jorge Contreras, Associate Professor, S.J. Quinney College of Law, University of Utah; Robert Frieden, Professor and Pioneers Chair in Telecommunication and Affiliate Law Faculty, Penn State University; Yaniv Heled, Assistant Professor, Georgia State University College of Law; Justin (Gus) Hurwitz, Assistant Professor, University of Nebraska College of Law; Thomas D. Jeitschko, Professor, Michigan State University; Daryl Lim, Assistant Professor, John Marshall Law School; and Jonathan Obar, Assistant Professor, University of Ontario Institute of Technology; Research Associate, Quello Center, Michigan State University; J. Janewa Osei-Tutu, Assistant Professor, Florida International University College of Law; Sean A. Pager, Associate Professor, Associate Director Intellectual Property, Information & Communications Law Program, Michigan State University College of Law; Mark F. Schultz, Associate Professor, Southern Illinois University School of Law; and Andrew W. Torrance, Professor and Docking Faculty Scholar, University of Kansas School of Law. The schedule of panels and talks is available online, along with related information about the event, at: http://www.law.msu.edu/ipic/public-domains/schedule.html
Jonathan Obar, a Quello Research Associate, spoke with WKAR regarding “net neutrality.” There has been a great deal of discussion around the idea of net neutrality and how it will affect people’s everyday use of the internet. Net neutrality is the debate over free use of the internet and has been going on for several years now. Jonathan’s interview provides a very accessible overview of the idea and the issues that have generated debate over the merits of net neutrality.
Listen to Jonathan’s interview on WKAR.