the net neutrality debate in the united...

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The Net Neutrality Debate in the United StatesJeffrey A. Hart aa Department of Political Science, Indiana University

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Journal of Information Technology & Politics, 8:418–443, 2011Copyright © Taylor & Francis Group, LLCISSN: 1933-1681 print/1933-169X onlineDOI: 10.1080/19331681.2011.577650

The Net Neutrality Debate in the United States

Jeffrey A. Hart

ABSTRACT. In 2006, a major telecommunications bill was held up because it did not include guar-antees for something called “net neutrality.” Republicans strongly opposed these guarantees, whileDemocrats strongly favored them. The debate over net neutrality continued during the long campaignleading up to the 2008 presidential election. When the Obama Administration took office in 2009, thenew chairman of the Federal Communications Commission, Julius Genachowski revived the idea ofcodifying net neutrality rules. In April 2010, the U.S. Court of Appeals in the District of ColumbiaCircuit ruled that the FCC did not have the authority to regulate Internet service providers under its owninterpretation of the Telecommunications Act of 1996. The FCC adopted a new strategy because of theCourt’s action. It opted not to undertake a major revision of the Telecommunications Act, but insteadto attempt to regulate Internet service provision under modified “common carriage” rules, just as basictelephone services had been previously. An attempt will be made here to explain these choices.

KEYWORDS. FCC, internet, net neutrality, regulation debate, United States

In 2006, a major telecommunications billfailed because it did not include guaran-tees for something called “net neutrality.”The political coalition in favor of net neu-trality included an odd assortment of inter-ests including the American Civil LibertiesUnion, the Christian Coalition of America,the Gun Owners of America, the AmericanLibrary Association, and the Consumers Union,along with Internet businesses such as Google,Amazon.com, and Yahoo!, and interest groupssuch as the American Electronics Associationand the Communications Workers of America.

The opposing coalition included the majortelephone and telecommunications equipment

Jeffrey A. Hart is a professor of political science at Indiana University. His research focuses on the politicaleconomy of international competition in high technology industries.

This paper was originally prepared for and delivered at the annual meeting of the American PoliticalScience Association in Chicago, Illinois, August 30, 2007, and revised for submission on November 24, 2010.The final version was completed January 31, 2011. Please do not cite or quote without written permission fromthe author.

Address correspondence to: Jeffrey A. Hart, Department of Political Science, Indiana University,Woodburn Hall 210, Bloomington, IN 47405 (E-mail: [email protected]).

companies, cable operators, and an assort-ment of technologists, conservative economists,and politicians who argued that net neu-trality guarantees would constitute a newform of government regulation that couldruin the Internet by reducing incentives tobuild broadband infrastructure and givingunfair advantages to already large content andapplications providers such as Google andYahoo!.

Those in favor of net neutrality argued forthe necessity of regulating the actions of theowners of Internet infrastructure in order to pre-serve the Internet as a forum for free speech,prevent the potential abuse of market power by

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telephone and cable companies, and promoteInternet-based economic innovation.

The purpose of this article is to describe andexplain the politics behind the U.S. net neutral-ity debate of the period between 2006 and 2010and to predict its likely future course. The mainquestions to be addressed are as follows:

1. What are the main factors explaining theemergence of support for and oppositionto net neutrality guarantees?

2. How are politics in this area related to thebroader debates over regulation and therole of the state in American politics?

3. To what extent did outcomes depend onwhich party controlled the White Houseand/or Congress?

4. How did the two main parties frame theissue?

5. Was there evidence that the political influ-ence of Internet-based services such asGoogle, Amazon, and Yahoo! was grow-ing over time?

6. Going beyond the struggle between groupswith differing interests, what role did con-siderations of the broader public interestplay in the debates?

This is a theoretically driven case study of anational debate over who gets access to broad-band digital infrastructure and under what con-ditions and terms. As such, and in conjunctionwith similar case studies of the universe ofdebates over net neutrality, it might contributeto theories about the politics of digital infras-tructures. There should be no question that thecase of the U.S. debate over net neutrality isan important case and therefore deserves carefuldescription. While the main method used here isthe construction of a historical narrative usingthe best available sources, it is expected thatfuture research will involve careful comparisonof multiple cases.

ORIGINS OF THE DEBATE

The debate over net neutrality began withdigitization: the progressive migration of every-thing that was once analog—text, symbols,

audio, and video—toward creation, storage, andtransmission in digital formats. The telephonenetworks were designed originally for the trans-mission of analog audio signals, but conversionof those signals to digital permitted more effi-cient use of telephone networks and hence lessexpensive services. Cable television networkswere designed originally for the transmissionof analog TV signals, but the same logic madeit desirable for cable operators to switch overto digital signal formats and transmission tech-nologies. The rise of the Internet, and partic-ularly the broadband-capable Internet, made itpossible to create, store, and transmit just aboutanything in digital format.

In the meantime, the federal governmenthad regulated various communications servicesseparately because of their initially differentcharacteristics. Telephone networks were regu-lated as “common carriers” just as highways,ocean shipping, and the postal system had been.This guaranteed that no one could be deniedaccess to vital communications and transporta-tion infrastructures. It also helped to preventthe abuse of monopoly power of dominant net-work providers. Additional efforts were made toassure that as many people as possible wouldhave access to the telephone network despitethe high costs of connecting people in remotelocations in the form of “universal service” pro-visions of the law (Mueller, 1997).

Television broadcasting was regulated in acompletely separate legal regime that focusedon the responsibility of broadcasters to serve thepublic in various ways defined by legislation.Cable television was extensively deregulatedduring the Reagan Administration to promotethe building and upgrading of cable networks.By the end of the 1990s, more than 70 percentof U.S. households got their TV signals via thecable networks.

In the Telecommunications Act of 1996,Congress provided incentives to both telephoneand cable companies to compete with oneanother to build their separate telecommunica-tions infrastructures and, if possible, to offercompeting digital telecommunications services.Initially, telephone companies stuck to tele-phone services, and cable companies stuck toproviding TV programming to customers. They

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420 JOURNAL OF INFORMATION TECHNOLOGY & POLITICS

both, however, began to experiment with offer-ing data access services as a sideline to theirmain businesses. Dial-up access to the Internetvia the telephone network was still the preferredmethod for consumers, while people in officesand universities began to have other and bettermeans to access the Internet.

By the end of the 1990s, the cable compa-nies were ahead of the telephone companies inoffering broadband Internet connectivity to cus-tomers via cable modems. A few years later, thetelephone companies began to offer DSL (digi-tal subscriber line) services to compete with thecable companies. By 2005, most Americans whohad broadband connections to the Internet weredoing so via cable modems or DSL.1 Growth intelephony and traditional cable TV revenues forboth telephone and cable companies had begunto flatten out by then, so both were pleased to seerapid growth in revenues for broadband services(see Table 1).

In the late 1990s, the issue of “open access”to the Internet arose as a result of proposedmergers between telephone companies andcable operators. In 1999, AT&T’s merger withTelecommunications, Inc. (TCI) raised fears ofa large and vertically integrated Internet serviceprovider. The acquisition of Time Warner byAOL in January 2000 raised similar concerns.Scholars wondered whether the unbundledaccess to telecommunications services at the“local loop” that applied to telephone compa-nies should also apply to cable operators whowere just then beginning to deploy broadband

TABLE 1. Telecommunications Revenues bySector, 2005

Type of service Total revenues(in $ billions)

Type of growth

Enterprise longdistance and data

80 Flat

Enterprise local voice 40 FlatConsumer fixed voice 80 ShrinkingConsumer broadband 15 Growing rapidlyWireless 100 Growing rapidlyVideo 50 Growing

Source: Robert Gensler, T. Rowe Price, as cited in Entman(2005), p. 9.

services over their networks (Bar & Riis, 2000;Lemley & Lessig, 2001; Noam, 1994).

The Republicans who came to power in 2000were not interested in preserving the benefitsof common carriage regulation for telephonecustomers or requiring the telephone and cablenetworks to offer unbundled access to the localloop. Instead, they believed that the best way tobuild the broadband infrastructure was to fos-ter competition between cable and telephonecompanies and to keep regulation of both toa minimum. (Mueller, n.d.) One of the resultsof this new philosophy was the FCC’s decisionin 2003 to release telephone companies fromthe obligation to share their digital infrastruc-ture with other companies via the unbundlingof DSL services, thus gravely undermining theprinciples of common carriage and universal ser-vice. A similar decision was made when theFCC labeled cable-modem services “informa-tion services” that did not need to be regulatedunder the Telecommunications Act of 1996. TheU.S. Supreme Court upheld the latter decision in2005 (U.S. Supreme Court, 2005).

THE BIRTH OF NET NEUTRALITY

On November 18, 2002, a coalition ofhigh-tech firms including Amazon.com, eBay,Yahoo!, Disney Corporation, and Microsoftcalled the Coalition of Broadband Users andInnovators (CBUI) sent a letter to FCCChairman Michael Powell urging the FCC to“assure that consumers and other Internet userscontinue to enjoy the unfettered ability to reachlawful content and services.” Members of theCBUI used the phrase “net neutrality” to refer toan idea originally discussed in an essay writtenin 2002 by Professor Tim Wu of Columbia LawSchool and published in 2003 (Wu, 2003). TheCBUI wanted the FCC to adopt “nondiscrim-ination safeguards” to guarantee net neutrality(Coalition of Broadband Users and Innovators,2002).

Lawrence Lessig and Robert W. McChesneydefine net neutrality in the following manner:

Net neutrality simply means that all likeInternet content must be treated alike and

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move at the same speed over the network.The owners of the Internet’s wires cannotdiscriminate. This is the simple but bril-liant “end-to-end” design of the Internetthat has made it such a powerful forcefor economic and social good. (Lessig &McChesney, 2006)

Eli Noam argues that there are multiple possiblemeanings of “net neutrality”:

1. No different quality grades (“fast lanes”)for Internet service

2. No price discrimination among Internetproviders

3. No monopoly price charged to content andapplication providers

4. Nothing charged to providers for transmit-ting their content

5. No discrimination [against] contentproviders who compete with the carrier’sown content

6. No selectivity by the carriers over thecontent they transmit

7. No blocking of the access of users to somewebsites. (Noam, 2006)

Noam argues further that the last two def-initions are important from the perspective ofpreserving freedom of speech and preventingcensorship of unpopular ideas. Most advocatesof net neutrality are not asking for free accessto the Internet for users or service providers,however, so the essence of the concept is nondis-crimination by carriers (owners of the infrastruc-ture) with respect to content, applications, andcontent/application providers.

FOUR PRINCIPLES, FOURFREEDOMS

In September 2003, the High Tech BroadbandCoalition2 sent a document to the FCCentitled “Broadband Principles for ConsumerConnectivity.” This document called for mini-mal regulation of broadband services to protectconsumer and provider interests. It argued forfour main principles:

1. Consumers should receive meaningfulinformation regarding their broadband ser-vices plans.

2. Broadband consumers should have accessto their choice of legal Internet contentwithin the bandwidth limits and quality ofservice of their service plan.

3. Broadband consumers should be able torun applications of their choice, within thebandwidth limits and quality of service oftheir service plan, as long as they do notharm the provider’s network.

4. Consumers should be permitted to attachany devices they choose to the broadbandconnection at the consumer’s premises, solong as they operate within the bandwidthlimits and quality of service of their ser-vice plans, and do not harm the provider’snetwork or enable theft of services. (HighTech Broadband Coalition, 2003, p. 1)

The phrase “within the bandwidth limits andquality of service of their service plan” wasincluded to protect the providers against “band-width hogs” who might degrade the servicequality of others by engaging in activitiesthat stretched the network beyond its capac-ity. Similarly, the providers wanted protectionagainst consumer or service provider actionsthat threatened the integrity of the networkand/or outright theft of services.

FCC Chairman Michael Powell delivered anaddress on February 8, 2004, in which he artic-ulated his ideas for four “Internet Freedoms:”

1. Freedom to access content2. Freedom to use applications3. Freedom to attach personal devices4. Freedom to obtain service plan informa-

tion (Powell, 2004, p. 5)

These four freedoms coincided closely with thefour principles elaborated in the document pre-pared by the High Tech Broadband Coalition,with a slight change of order.

The FCC adopted a Policy Statement inAugust 2005 that included four “principles”that were modified versions of Powell’s fourfreedoms:

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1. . . . consumers are entitled to access thelawful Internet content of their choice.

2. . . . consumers are entitled to run applica-tions and services of their choice, subjectto the needs of law enforcement.

3. . . . consumers are entitled to connect theirchoice of legal devices that do not harmthe network.

4. . . . consumers are entitled to compe-tition among network providers, appli-cation and service providers, and con-tent providers. (Federal CommunicationsCommission, 2005b, p. 3)

The FCC’s fourth principle goes a bit beyondPowell’s idea of fully informing consumersabout their broadband plans. The next twosentences in the statement are a bit puz-zling, but clearly indicate the difficulty theCommission had in reconciling the conflict-ing views of its members: “Although theCommission did not adopt rules in this regard,it will incorporate these principles into its ongo-ing policymaking activities. All of these prin-ciples are subject to reasonable network man-agement” (Federal Communications Commi-ssion, 2005b, p. 3, footnote 15).

In March 2005, just before Michael Powellleft office, the FCC struck a blow for net neu-trality by forcing a small DSL service provider,the Madison River Telephone Company basedin Mebane, North Carolina, to stop blockingits customers from using Vonage’s voice-over-Internet-protocol (VoIP) service. The FCC nego-tiated a consent decree with the company thatis now considered an important legal prece-dent for net neutrality (Federal CommunicationsCommission, 2005a).

Nevertheless, the Madison River action wastaken against a telephone company using exist-ing laws that gave the FCC regulatory powersover telephone companies, whereas advocates ofnet neutrality wanted the FCC’s powers to beextended to cable operators and other providersof broadband services (McCullagh, 2005).

THE WHITACRE INTERVIEW

The net neutrality debate rose to a higher levelof intensity after Edward E. Whitacre, Jr., then

CEO of SBC Telecommunications,3 was quotedin an October 2005 interview as follows:

Q: How concerned are you aboutInternet upstarts like Google, MSN,Vonage, and others?

A: How do you think they’re going to getto customers? Through a broadband pipe.Cable companies have them. We havethem. Now what they would like to do isuse my pipes free, but I ain’t going to letthem do that because we have spent thiscapital and we have to have a return onit. So there’s going to have to be somemechanism for these people who use thesepipes to pay for the portion they’re using.Why should they be allowed to use mypipes? The Internet can’t be free in thatsense, because we and the cable compa-nies have made an investment and for aGoogle or Yahoo! or Vonage or anybody toexpect to use these pipes [for] free is nuts!(McConnell, 2005)

Suddenly what had been theoretical specula-tion about the potential for discrimination byinfrastructure owners against service providersno longer seemed theoretical.

VINT CERF WEIGHS IN

One of the founding fathers of the Internet,Vint Cerf, sent a letter to RepresentativesJoe Barton (R-Texas) and John Dingell (D-Michigan) on November 8, 2005, defending theidea of net neutrality:

The remarkable social impact and eco-nomic success of the Internet is in manyways directly attributable to the architec-tural characteristics that were part of itsdesign. The Internet was designed with nogatekeepers over new content or services.The Internet is based on a layered, end-to-end model that allows people at eachlevel of the network to innovate free ofany central control . . . Enshrining a rulethat broadly permits network operators todiscriminate in favor of certain kinds ofservices and to potentially interfere with

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others would place broadband operatorsin control of online activity. Allowingbroadband providers to segment their IPofferings and reserve huge amounts ofbandwidth for their own services will notgive consumers the broadband Internet ourcountry and economy need. Many peoplewill have little or no choice among broad-band operators for the foreseeable future,implying that such operators will have thepower to exercise a great deal of con-trol over any applications placed on thenetwork. (Cerf, 2005)

At the time, Cerf was employed as “ChiefInternet Evangelist” for Google. Nevertheless,he was there at the creation of the Internet andfor many years chaired the Internet ActivitiesBoard. The arguments he mustered in his letterwere to appear again and again in subsequentstatements by Net neutrality advocates, so itmight be helpful to review them in some detail.

End-to-End Architecture

One of the most important ideas behind theInternet is packet switching. Packet switchingpermits messages to be sent from origin to des-tination via whatever paths are available on thenetwork. The original message is divided intopackets to take advantage of the possibility ofsending parts of the message via different routes,thus using the network efficiently and allowingit to deliver a message even though a specificpath may not be functioning. Packet switchingrequires that each node in the network havea unique identifier that is accessible to all theother nodes via dedicated computers, called rootservers (Mueller, 2002; Saltzer, Reed, & Clark,1984).

In theory, the network sends packets fromnode to node independent of content. The pack-ets are then reassembled in the correct orderat the destination. In practice, however, not allpackets are treated equally. It is possible toprioritize messages that are particularly time-dependent—such as audio files for voice tele-phony applications—so that the end user doesnot experience delays in reception and other

forms of signal degradation. The telephone com-panies have argued strongly for preserving theirright to prioritize the delivery of certain typesof content (mainly telephony-related audio andreal-time video) in order to assure what they call“quality of service” (Quality of Service, n.d.).

More recently, technological changes havepermitted telephone and cable companies tomanage the traffic on their networks by deeppacket inspection (DPI). Whereas prioritizationof voice telephony simply requires looking atthe header of a file to determine what type offile it is, DPI allows the network operator toexamine the contents of incoming packets (notjust the header) in fuller detail while decidinghow to handle them. According to the tele-phone and cable companies, DPI is necessary forguaranteeing quality of service.

For a packet-switched network to operate effi-ciently, it needs to have as much flexibility aspossible in determining along which paths toconvey packets. If the network discriminatesagainst certain nodes, paths associated withthose nodes might not be available when theyare needed. A user at a node that is being dis-criminated against will experience slower thanaverage speeds of transmission and receptionand may not be able to communicate with othernodes at all. Thus one of the basic notionsbehind the value of communications networks(that all nodes can reach all other nodes) isput in jeopardy. Similarly a network that priori-tizes certain types of packets (especially packetsof content that directly benefits the networkproviders) is clearly discriminating against otherservice providers.

The end-to-end argument, to summarize, wasthat it is better not to prioritize packets butinstead to upgrade the entire network to dealwith quality assurance issues while maintainingthe overall openness of the Internet. Opponentscall this the “dumb network” approach, asopposed to the “intelligent network” or “qual-ity of service” approach that they favor. DavidIsenberg summarized the argument as follows:

A new network “philosophy and archi-tecture” is replacing the vision of anIntelligent Network. The vision is one in

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which the public communications networkwould be engineered for “always-on” use,not intermittence and scarcity. It wouldbe engineered for intelligence at the end-user’s device, and not in the network. Andthe network would be engineered simplyto “Deliver the Bits, Stupid,” not for fancynetwork routing. (Isenberg, 1997)

The question of dumb vs. intelligent networkswould prove to be important in the debates overnet neutrality.

Discrimination by Broadband ServiceProviders against Other Service Providers

Discrimination by broadband serviceproviders—such as AT&T, Verizon, TimeWarner, or Comcast—would be a problemboth for other service providers—such asGoogle and Yahoo!—and their users. The mostegregious form of discrimination by broadbandservice providers would be complete denialof connection to the infrastructure, but a moresubtle form of discrimination could occur ifconnectivity charges were too high for thecontent or application services providers to beable to compete with services offered by thebroadband service providers.

Economists have recently modeled this intheir theories of “two-sided markets.” In a two-sided market, an intermediary exists betweenproducers and consumers that decides whichproducers will have access over a network towhich consumers under what terms. Many net-work infrastructures have this characteristic. Forexample, railroad transportation has shippersand final customers who are connected to oneanother via a railroad operator. In a telephonenetwork, sellers and buyers use the networkwithout having to identify what type of userthey are to the operator. The telephone network,therefore, is a one-sided market. In other net-works, this is not the case and a clear distinctioncan made between senders and receivers. Whenthis occurs, the network constitutes a two-sidedmarket in which the network operator can priceaccess to the network differentially according tothe type of user (Parker & Van Alstyne, 2000).

So, in essence, what the proponents of net neu-trality want is that the Internet be a one-sidedmarket and what the opponents want is that it betwo-sided.

Reservation of Bandwidth by BroadbandService Providers

It has been suggested that the telephone com-panies intended to reserve up to 80 percent of thetotal bandwidth in their networks for servicesthat they intended to offer (mostly cable-TV–like video services), leaving only 20 percentavailable for other services. The telephone com-panies claimed that this would be necessary toprovide broadcast-quality video services to cus-tomers so that they could compete on equalterms with cable operators. They said that theyneeded to do this in order to invest in futureinfrastructural improvements. But the fear ofother service providers was that, unless theypaid substantially larger connectivity fees, theywould be relegated to the “slow lanes” of thebroadband Internet, especially as overall trafficincreased. The desire of telephone companies tocompete directly with cable operators, in theirview, meant that telephone companies wouldcome to possess the same power to decide whogot to offer what services to customers overthe networks as cable operators. Instead of anopen network, there would be a “walled garden”(Messaging Anti-Abuse Working Group, 2007).

Exercise of Market Power by BroadbandService Providers

Since the over 87 percent of all U.S. house-holds that can potentially subscribe to broad-band services can get them only from telephoneor cable companies, and about one-third of thesehouseholds have access either to DSL or cablemodem services, but not both, there is a con-cern that broadband service providers mightuse their monopoly or duopoly market powerto extract rents (excessive profits) from cus-tomers and to exclude certain service providersor consumers for non-economic reasons. Thelatter would be particularly problematic from afreedom-of-speech or censorship perspective.

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TIM BERNERS-LEE WEIGHS IN

In late March 2006, Tim Berners-Lee, a chiefarchitect of the World Wide Web and the inven-tor of the hypertext markup language (HTML),stated his support for the net neutrality move-ment in an interview with the Toronto Star:

It stops being the Net if a supplier of down-loaded video pays to connect to a particularset of consumers who are connected toa particular cable company. It would nolonger be an open information space. . . .

The whole point of the Web is when youarrive it’s more or less the same for every-body. That integrity is really essential. . . .

I’m very concerned. (Hamilton, 2006)

Berners-Lee continued to speak out in favor ofnet neutrality guarantees, as did Vint Cerf. Itwas somewhat surprising to supporters, there-fore, when David Farber and Robert Kahn, alsoInternet pioneers, came out against net neutrality(see section on Opposing Views below).

THE CHRISTIAN COALITIONWEIGHS IN

On May 17, 2006, Roberta Combs, Presidentof the Christian Coalition of America,announced her organization’s support fornet neutrality:

Under the new rules, there is nothing tostop the cable and phone companies fromnot allowing consumers to have access tospeech that they don’t support. What if acable company with a pro-choice Boardof Directors decides that it doesn’t like apro-life organization using its high-speednetwork to encourage pro-life activities?Under the new rules, they could slowdown the pro-life web site, harming theirability to communicate with other pro-lifers—and it would be legal. We urgeCongress to move aggressively to savethe Internet—and allow ideas rather thanmoney to control what Americans canaccess on the World Wide Web. We urge all

Americans to contact their Congressmenand Senators and tell them to save theInternet and to support “Net Neutrality.”(Christian Coalition of America, 2006)

Freedom of speech was also a major concernof the American Civil Liberties Union, theAmerican Library Association, the Gun Ownersof America (Fields, 2008), and MoveOn.org.

OPPOSING VIEWS

One particularly strong statement in opposi-tion to net neutrality came out in February 2006from the U.S. Internet Industry Association(USIAA). In the first sentence, a phrase destinedto be repeated many times by opponents of netneutrality appeared: “Net neutrality is a solutionin search of a problem.” The document went onto argue that the concept itself was vague andits definition was shifting constantly, that legis-lation banning tiered or selective service planswould “eliminate Christian-focused Internet ser-vices” and “would have the practical effect offorcing families to accept pornography into theirhomes . . .” (U.S. Internet Industry Association,2006).

J. Gregory Sidak, a visiting professor of lawat Georgetown University, testified in opposi-tion to net neutrality at a Senate Committee onCommerce, Science, and Transportation hearingon February 7, 2006:

“Net neutrality” obligations would requirea telecommunications carrier to operate itsbroadband network so that no packet ofinformation is treated as inferior to oth-ers in terms of its urgency of delivery.Under “net neutrality” I can take comfortin knowing that my son’s Internet chat-ting about what agent Jack Bauer did onlast night’s episode of 24 will receive thesame priority of delivery as my file transferof this testimony to the Committee’s staff.The practical effect of “net neutrality”obligations would be to require a telecom-munications carrier to recover the fullcost of its broadband network connectionthrough a uniform flat-rate charge imposedon all end users.

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Companies like Google, eBay, andYahoo! might believe that such an outcomeworks to their private economic advantage,but that short-run view would neglect thedisincentive that “net neutrality” obliga-tions would create for private investmentin the very broadband infrastructure uponwhich these companies rely to deliver theircontent and applications to consumers.(Sidak, 2006)

Robert Kahn, who along with Vint Cerf pio-neered the TCP/IP protocols, argued that netneutrality was a regulatory slogan that heopposed. He thought it would foreclose innova-tions in Internet technology that were very muchneeded (Network Neutrality, n.d.).

In June 2006, David Farber, a professorof telecommunications engineering who was amajor participant in the building of the Internet,argued that it would be against the interests ofcustomers to restrict the ability of broadbandservice providers to manage their networks:

The current Internet supports many pop-ular and valuable services. But expertsagree that an updated Internet could offera wide range of new and improved ser-vices, including better security againstviruses, worms, denial-of-service attacks,and zombie computers; services thatrequire high levels of reliability, such asmedical monitoring; and services that can-not tolerate network delays, such as voiceand streaming video. To provide thesenew services, both the architecture of theInternet and the business models throughwhich Internet services are delivered mayhave to change.

Congress is considering several initia-tives (known collectively under the bannerof “network neutrality”) aimed at pro-moting continuing Internet innovation byrestricting network owners’ ability to givetraffic priority based on the content orapplication being carried or on the sender’swillingness to pay. The problem is thatsome of the practices that network neutral-ity would prohibit could increase the value

of the Internet for customers. (Farber,2006)

Following the release of Farber’s statement, theCenter for American Progress staged a debatebetween Farber and Cerf on July 17, 2006, inwhich Cerf reiterated his major arguments (seeabove) and Farber backed away a bit from hiscriticisms of net neutrality guarantees, but con-tinued to defend the idea that Congress was notcapable of making good policy decisions in thisarea: “The Congress seems to be very confused.. . . They don’t understand what the networkdoes. . . . They always pile stuff on, usually atthe last minute, that can do harm” (The GreatDebate, 2006).

Like Farber, Michelangelo Volpi, Senior VicePresident of Cisco Systems, argued against netneutrality on the basis of the need for broadbandproviders to manage their networks intelligentlyand without Congressional interference:

The net neutrality debate comes downto this: content providers and aggregatorswant to regulate the Internet so that ser-vice providers cannot charge for differentlevels of service among their customers.The proposed rules would be akin to reg-ulating that there cannot be carpool laneson a highway. Broadband service providerswho build the networks believe they shouldbe able to manage the networks for effi-ciency, security, and quality of service.Broadband providers believe they shouldbe able to place intelligence in the coreof their network as well as the edge,or the part that reaches consumers. Thedebate between these two camps centerson whether Congress should step in to cre-ate such regulation. It should not. (Volpi,2006)

Volpi went on to argue that the next gen-eration of Internet users would be increasinglyaccessing “high-bandwidth, time-sensitive ser-vices.” In order to provide a high quality onlineviewing experience for TV viewers, in partic-ular, it would be necessary to charge higherfees to those users. If higher fees could not be

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charged, in Volpi’s view, it would be impos-sible for the market to provide signals aboutwhat users really want. Thus, “a market-basedapproach is the correct way to go with theInternet” (Volpi, 2006).

Robert Pepper, former FCC chief of policydevelopment, who became the senior managingdirector of global advanced technology policy atCisco Systems in July 2005, said:

. . . supporters of net neutrality regula-tion believe that more rules are necessary.In their view, without greater regulation,service providers might parcel out band-width or services, creating a bifurcatedworld in which the wealthy enjoy first-class Internet access, while everyone elseis left with slow connections and degradedcontent. That scenario, however is a falseparadigm. Such an all-or-nothing worlddoesn’t exist today, nor will it exist in thefuture. Without additional regulation, ser-vice providers are likely to continue doingwhat they are doing. They will continue tooffer a variety of broadband service plans

at a variety of price points to suit everytype of consumer. (The Great Debate,2006)

HOW THE INTERESTS LINED UP

Table 2 provides of summary of how differentindividuals and groups lined up for and againstnet neutrality. It does not include individuals andgroups who took an in-between or third posi-tion. From a partisan political standpoint, therewere clearly more Democrats than Republicansin favor of net neutrality. Business interestssplit, with application and content providers forand broadband service providers and telecom-munications equipment manufacturers against.Some conservative interest groups were sup-porters of net neutrality—such as the ChristianCoalition and the Gun Owners of America—but most opposing groups were conservative.Conservative think tanks and academics mostlyopposed net neutrality.

It is worth noting that the cable companiesand their trade association, the National Cableand Telecommunications Association (NCTA),

TABLE 2. Who Favored and Who Opposed Net Neutrality?

In favor of net neutrality Opposed to net neutrality

Large, Internet-based companies:Amazon.comeBayGoogleMicrosoft

Large, broadband service providers:AT&TBellSouthComcastVerizon

Consumer/civil liberties groups:American Civil Liberties UnionConsumers UnionFree PressPublic Knowledge

Network equipment providers:AlcatelCiscoCorningQualcomm 3M

Interest groups:American Library AssociationChristian Coalition of AmericaComputer Professionals for Social

ResponsibilityGun Owners of AmericaMoveOn.orgTechNetService Employees Intl. UnionSavetheInternet.com Coalition

Interest groups:American Conservative UnionCitizens Against Government WasteCommunications Workers of AmericaNational Association of ManufacturersNational Black Chamber of CommerceNational Coalition on Black Civic

ParticipationHands Off the InternetUS Internet Industry Association

Source: Tooley (2006), with modifications by the author.

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were not particularly eager to support the videofranchise bill because a national video franchisewould make it easier for telephone companiesto compete with them. According to NCTAspokesperson Rob Stoddard, “Our approach sofar has been one of pragmatism and acknowl-edging that there is strong sentiment for anational video franchise. . . . We haven’t fullyweighed in. It’s a matter of seeing what the var-ious committees do with it before it reaches thefloor” (Sullivan, 2006).

There were a number of individuals andgroups who adopted an intermediate position,not agreeing entirely with either the pro- oranti- forces. As a consequence of the vigorousdebate over net neutrality, Congress began toconsider embedding net neutrality guarantees inlegislation.

THE INTERNETNON-DISCRIMINATION ACT

The Internet Non-Discrimination Act of 2006(S. 2360) was introduced by Senator RonWyden (D-Oregon) on March 2, 2006 in theSenate Committee on Commerce, Science, andTransportation. It never got out of committee.

THE INTERNET FREEDOM ANDNONDISCRIMINATION ACT OF 2006

The Internet Freedom and NondiscriminationAct of 2006 (H.R. 5417) would have made it aviolation of the Clayton Antitrust Act for broad-band providers to “fail to provide access to itsbroadband network on reasonable and nondis-criminatory terms and conditions to anyone tooffer content, applications or services at leastequal to the broadband provider’s own services(or its affiliate’s services) . . .” (Windhausen,2006). Introduced by Representatives F. JamesSensenbrenner (R-Wisconsin) and John Conyers(D-Michigan) on May 18, 2006, it was approvedby the House Judiciary committee on May 25,2006, in a 20–13 vote (the 14 Democrats werejoined by six Republicans; the remaining 13Republicans voted no). The bill was never takenup on the House floor and thus failed to beenacted.

The Judiciary Committee’s vote was affectedsomewhat by a turf battle between with theHouse Energy and Commerce Committee.While the former was considering the InternetFreedom and Nondiscrimination Act, the lat-ter was considering the video franchise bill(see the following section below). The JudiciaryCommittee wanted to make sure that antitrustmatters remained under the jurisdiction of theDepartment of Justice. The video franchisebill would have given a sort of specializedantitrust enforcement authority to the FederalCommunications Commission (McCullagh &Broach, 2006).

THE VIDEO FRANCHISE BILL

The main purpose of the video franchise billwas to make it possible for telephone compa-nies to offer cable-TV–like video services overthe telephone infrastructure in competition withthe cable operators. The telephone companieshad argued that it would be impossible for themto compete effectively if they had to devote thetime and energy already spent by cable com-panies winning the approval of state and localgovernments for video franchises, so the billaimed to create national franchises instead oflocal ones for this purpose.

Representatives Joe Barton (R-Texas),Chairman of the House Energy and CommerceCommittee, and Fred Upton (R-Michigan)sponsored and introduced the House’s versionof the bill, the Communication Opportunity,Promotion, and Enhancement (COPE) Actof 2006 (H.R. 5252), on March 30, 2006.Senator Ted Stevens (R-Alaska), Chairman ofthe Senate Commerce Committee, sponsoredand introduced the Senate’s version of the bill,the Communications, Consumer’s Choice, andBroadband Deployment Act (CCBD) of 2006(S.2686), on May 1, 2006.

Both versions of the bill contained lan-guage corresponding closely to the FCC’sfour principles. The House version containedauthority for the FCC to punish violators ofbroad Internet nondiscrimination principles with$500,000 fines, but the authority was only toadjudicate complaints on a case-by-case basis

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and not to establish regulations mandating netneutrality.

Representative Ed Markey (D-Massachusetts) offered amendments to theHouse bill both in committee in April andduring the floor debate on June 8, 2006, thatincluded explicit net neutrality guarantees, butthese amendments were defeated. The Houseversion of the bill passed by a vote of 321–101on June 8, 2006, and the Markey Amendmentwas defeated on the floor of the House by avote of 152–269 (58 Democrats voted with 211Republicans against the amendment; only 11Republicans voted in favor).

One of the Democrats who voted for the billwas Eliot Engel (D-New York). Engel, who rep-resented a New York City constituency, said thatin his district “competition in video service doesjust not exist. . . . I have heard opposition tothis bill, and I respect it. But on balance I haveto support this bill” (Clark, 2006b). AnotherDemocrat, Bobby Rush (D-Illinois), said that hisconstituents in the Chicago area, many of themAfrican-American, would benefit from the lowerprices for cable services that the bill wouldprovide (Eggerton, 2006).

When the Senate’s version of the billwas being considered in committee, SenatorOlympia Snowe (R-Maine) proposed a net neu-trality amendment entitled the Internet FreedomPreservation Act of 2006 (S. 2917) that wasdefeated in an 11–11 vote on June 28, 2006.All 10 Democrats on the Committee voted withSenator Snowe. The video franchise bill passedin committee by a vote of 15–7. Senator Snowewas the only Republican who voted against it.Senator Ron Wyden (D-Oregon) said he wouldtry to block it on the Senate floor (Clark,2006b).

Senator Stevens made his famous statementabout the Internet in a speech on June 28, 2006,while explaining his vote against the net neutral-ity amendment:

And again, the Internet is not somethingyou just dump something on. It’s not abig truck. It’s a series of tubes. And ifyou don’t understand those tubes can befilled and if they are filled, when you putyour message in, it gets in line and it’s

going to be delayed by anyone that putsinto that tube enormous amounts of mate-rial, enormous amounts of material. (Seriesof Tubes, n.d.)

Even though Stevens was simply trying to makea point, albeit ineptly, about bandwidth hogs,his statement was immediately picked up bynet neutrality supporters as evidence of Stevens’lack of knowledge about the Internet. Lampoonsof the statement promptly appeared on GoogleVideo and YouTube, Jon Stewart made fun of iton The Daily Show, and bloggers went wild (seeFigure 1).

Stevens’ constituents in Alaska were not toohappy with his position on net neutrality. TheAnchorage Daily News published an editorialin favor of net neutrality on September 5, 2006(Anchorage Daily News, 2006). MoveOn.orgtargeted Stevens and other opponents ofnet neutrality for ads criticizing their viewsand publicizing the campaign contributionsthey had received from telecommunicationsinterests.

Senator Wyden issued a statement on June 26,2006, announcing his intention to place a “hold”on a vote on the video franchise bill because itlacked net neutrality guarantees:

As a United States Senator who hasdevoted himself to keeping the Internetfree from discrimination, from discrimi-natory taxes and regulations to assuringoffline protections apply to online con-sumer activities as well, I cannot standby and allow the bill to proceed with thisprovision. The inclusion of this provisioncompels me to inform my colleagues thatI would object to any unanimous con-sent request for the United States Senateto move to consider this bill. (Wyden,2006)

The video franchise bill was not put up for a votein the Senate as a result of Wyden’s hold andthe implied threat of a filibuster. To break thehold, Senator Stevens needed 60 votes. He didnot have them.

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FIGURE 1. Posts by day about “series of tubes” in the 30 days following the statement by SenatorStevens (color figure available online).

LOBBYING EFFORTS

Lobbying played a role in the defeat of thevarious efforts to amend the video franchisebill to include explicit net neutrality guaran-tees. Large sums were spent, in particular, bythe telecommunications industry. Estimates ofthe total spent by cable, telephone, and Internetcompanies in the first half of 2006 were in theneighborhood of $110 million (see Table 3).Perhaps this was the basis of published claimsthat firms were spending $1 million per day.

Hands Off the Internet (HandsOff.org)and NetCompetition.org were Web sitesfunded primarily by the telephone companiesthat raised a total of $9.1 million by July

2006. Most of these funds were spent onadvertising. ItsOurNet.org—with funding fromMicrosoft, Google, Yahoo!, and IAC/InteractiveCorporation—SavetheInternet.com, run by FreePress, a non-profit group, and MoveOn.orgaccounted for most of the pro-net-neutralityadvertising and lobbying on the Web. Theycollected a total of $2.7 million by July 2006and focused primarily on mobilizing activists insupport of net neutrality legislation (NetworkNeutrality Legislation, n.d.). Over a millionpeople signed an online petition to Congress,which SavetheInternet.com posted on its Website (Aron, 2006).

In addition, telephone companies providedcampaign contributions to certain Senators and

TABLE 3. Money Spent by Telephone, Cable, and Internet Interestson Telecommunications Reform, First Half of 2006, in Millions of Dollars

Category Specific firms and organization Amount in $ millions

Telephone Interests AT&T, Verizon, BellSouth, and USTA 30.3Cable Interests Comcast, Time Warner, Cox, and NCTA 12.2Internet Interests Google, Yahoo!, eBay, Microsoft, Amazon.com 8.8Total 51.3

Source: Hearn (2006).

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TABLE 4. Campaign Contributions from Telephone Utilitiesto Representatives, as of May 9, 2006, in Thousands of Dollars

Representative Contributions since 1989 Contributions since 2005

Joe Barton (R-TX) 257 30Charles Pickering (R-MS) 361 44Bobby Rush (D-IL) 103 8Fred Upton (R-MI) 142 26

Source: Network Neutrality Legislation, n.d.

Congressmen who they considered to be sup-porters (see Table 4). The Representatives inTable 4 were all co-sponsors of the House ver-sion of the video franchise bill.

In addition to the campaign contributions,there was a scandal over a $1 million con-tribution in 2005 from the SBC CharitableFoundation to an Englewood, Illinois, commu-nity center founded by Representative BobbyRush (D-Illinois) (Sweet, 2006). Campaign con-tributions from the executives of the telephoneand telecommunications equipment companiestended to go mainly to Republicans, reflect-ing the latter’s generally more positive stancetoward a national video franchise and theiropposition to net neutrality.

PARTISANSHIP AND THE ROLEOF FRAMING

The debate over net neutrality becamelargely a partisan debate, despite the fact thata few Republicans like James Sensenbrenner(R-Wisconsin) and Olympia Snowe (R-Maine) favored net neutrality guarantees. TheRepublican Party had a pre-existing frame forother national issues that fit very well withopposition to net neutrality: government regu-lation is bad, markets are good. The problemwas how to convince the public that net neu-trality guarantees constituted bad governmentregulation. Proponents clearly wanted to givethe FCC the power to enforce net neutralityprinciples. But to make the argument as stronglyas possible, opponents of net neutrality had topaint the pre-existing regime for the Internet asnon-regulatory (and therefore successful) andto find examples of poor regulatory decisions

by the FCC. They used the example of theTelecommunications Act of 1996 to make thepoint that bad regulation had bad results (slowdeployment of DSL by telephone companies).They turned frequently to the example of cableTV deregulation in the Reagan administrationin 1988 to show that deregulation had goodresults.

The relatively complicated concept of netneutrality originally put forward by proponentsposed problems for supporters and opportunitiesfor opponents. It was easy for opponents to crit-icize the idea as vague and shifting. Very fewpeople understood what net neutrality meant. Apublic opinion survey conducted by the GloverPark Group and Public Opinion Strategies inSeptember 2006 revealed that only s percent ofrespondents said that they had heard or seen any-thing about net neutrality. However, when thepollsters explained the concept, many respondedfavorably (Fisher, 2006).

The main problem for proponents of net neu-trality was to find a way to explain the issue toa broader public. They had to do this in orderto go beyond their core supporters: telecom-munications experts and lawyers, civil rightsorganizations, and Internet-related businesses.Prior to June 2006, proponents responded defen-sively to the arguments of opponents. Table 5summarizes the arguments of opponents and thecounter-arguments of proponents.

Proponents did not help their cause when theydefined net neutrality in technological termsinstead of in terms of issues like freedom ofspeech, economic development, job creation,and consumer choice, which politicians and vot-ers could understand. This began to changeimmediately after the defeat of net neutralityamendments in June 2006.

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TABLE 5. Arguments and Counter-Arguments Regarding Net Neutrality

Subissues Opponents Proponents

Role of the market Let the market do its magic Enforce antitrust laws so the marketcan do its magic

Threat of discrimination Net neutrality guarantees areunnecessary because there hasbeen no discrimination bytelephone and cable companies

Cite statement by Edward Whitacreand the Madison River case

Desirability of regulation Undesirable (cite positive example ofcable deregulation and negativeexample of Telecom Act of 1996)

Desirable (argue that net neutralityguarantees were in place untilFCC removed them)

Need to prioritize packets Necessary for intelligently managingfuture broadband networks

Not necessary or desirable becauseit undermines end-to-endarchitecture

Need to create incentives fortelephone and cablecompanies to build futurenetworks

Future networks cannot be paid forunless providers can chargecontent and application providersfor prioritizing packets

Telephone and cable companies willdiscriminate against competitorsand overcharge consumers

Need to create more competition Best way to do this is to havetelephone and cable companiescompete

Best way to do this is to addwireless, municipal, and publicbroadband providers

THE TIDE BEGINS TO TURN

In a podcast published on the Internet on June8, 2006, Democratic candidate for the presi-dency Barack Obama stated his support for netneutrality:

The topic today is net neutrality. TheInternet today is an open platform wherethe demand for Web sites and services dic-tates success. You’ve got barriers to entrythat are low and equal for all comers. . . . Ican say what I want without censorship. Idon’t have to pay any special charge.

But the big telephone and cable com-panies want to change the Internet andstrike exclusive contractual arrangementswith Internet content-providers for accessto those high-speed lanes. Those of us whocan’t pony up the cash for these high-speedconnections will be relegated to the slowlanes. So here’s my view. We can’t havea situation in which the corporate duopolydictates the future of the Internet, andthat’s why I’m supporting what is callednet neutrality. (Marsden, 2010, p. 1)

The mid-term elections in November2006 resulted in new majorities for the

Democrats in both the House and the Senate.Democrats replaced Republicans as chairsof the committees in charge of telecom-munications. Representative John Dingell(D-Michigan) replaced Joe Barton (R-Texas)as Chairman of the House Committee onEnergy and Commerce, and Edward Markey(D-Massachusetts) became Chairman of theSubcommittee on Telecommunications and theInternet. Daniel Inouye (D-Hawaii) replacedTed Stevens (R-Alaska) as Chairman of theSenate Committee on Commerce, Science, andTransportation. While the FCC remained underRepublican control, and Kevin Martin—a strongopponent of net neutrality—became chairmanafter the departure of Michael Powell, the newRepublican member of the Commission, RobertM. McDowell, soon began to disagree withMartin over a variety of issues (just as Martinhad done earlier with Powell).

The AT&T-BellSouth Merger

In order to gain regulatory approval forits merger with BellSouth, AT&T agreed onDecember 29, 2006, to

. . . maintain a neutral network and neu-tral routing on its wire line broadband

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Internet access service. This commitmentshall be satisfied by AT&T/BellSouth’sagreement not to provide or to sell toInternet content, application, or servicesproviders, including those affiliated withAT&T/BellSouth, any service that privi-leges, degrades or prioritizes any packettransmitted over AT&T/BellSouth’s wireline Internet access service based on itssource, ownership, or destination. (Quinn,2006)

While this commitment was only for a two-year period, supporters of net neutrality viewedAT&T/BellSouth’s move as an important prece-dent and a vindication of their efforts. If theyhad not been able to demonstrate that there wassubstantial political support for net neutrality, nosuch concession would have been forthcoming.

The AT&T agreement to the consent decreewas a blow to FCC Chairman Martin, who hadopposed it up to the last minute. Martin appar-ently cared more about preventing net neutralitythan AT&T. Of course, there was a lot of moneyinvolved in the merger ($87 billion to be pre-cise), and from CEO Edward Whitacre’s pointof view, business came first (Brodsky, 2007).After the AT&T agreement, Chairman Martinwas more inclined than previously to support alimited form of net neutrality.

In January 2007, Senators Snowe andByron Dorgan (D-North Dakota) introducedyet another net neutrality bill in the Senate,the Internet Freedom Preservation Act (S.215).Besides mandating nondiscrimination, the billwould require broadband operators to offer“naked” DSL and cable modem service thatdid not require the purchase of other services.It was referred to the Senate Committee onCommerce, Science, and Transportation, butwas never reported out of committee.

In 2007, the question of the relatively back-ward position of the United States in the globalrace to deploy broadband networks began toappear in Democratic criticisms of the Bushadministration and the FCC. The Congressbegan to consider ways to address this, mostnotably in the form of proposed legislation tocreate a broadband inventory map of the nation.Senator Inouye sponsored a bill to do this called

the Broadband Data Improvement Act of 2007(S. 1482), which cleared the Senate CommerceCommittee by a unanimous vote in July 2007.It passed in the Senate on September 26, 2008(it was now the Broadband Data ImprovementAct of 2008, S. 1492) by unanimous consent,and in the House without objection three dayslater. President Bush signed the bill on October10, 2008.

At the Democratic National Convention inthe summer of 2008, net neutrality was embed-ded in the official party platform (DemocraticNational Convention Committee, 2008). TheDemocrats had been quite successful in publi-cizing the issue to garner campaign contribu-tions and thought that it would help them towin the presidency in 2008. And in fact, Googlewas the number three provider of campaignfunds (behind Goldman Sachs and Microsoft)for the Obama Campaign at $800,000 (Carney,2010).

COMCAST THROTTLES BITTORRENTDATA STREAMS

In August 2007, Comcast began to blockfile transfers on its network by customers usingpopular peer-to-peer (P2P) networks such asBitTorrent, eDonkey, and Gnutella. This wasdone without any public announcement, butafter it was first detected by an engineer inOregon, Robb Topolski, when he was trying todownload some barber shop quartet music froma BitTorrent site. Topolski publicized the resultsof his efforts to understand what had happenedin an online blog called TorrentFreak (Ernesto,2007). The Electronic Frontier Foundation andthe Associated Press conducted their own testsand confirmed that Comcast was indeed engag-ing in the practices Topolski had identified(Svensson, 2007).

Apparently, Comcast had been applying anapplication called Sandvine that permitted themto throttle certain types of traffic (which theycalled “traffic shaping”) even though the traf-fic was encrypted. BitTorrents works by sendingparts (packets) of a file to a number of coop-erating users’ computers, which are then usedto speed up the transfer to its final destination

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in a process called “seeding.” The Sandvineapplication stops or slows the transfer by recog-nizing the seeding and then refusing to acknowl-edge the transmissions (Topolski, 2007).

Although Comcast claimed that this was alegitimate way to reduce congestion on its net-work and to prevent copyright infringement,many users complained to the FCC that Comcastwas violating net neutrality by doing so. TheFCC agreed with the critics in an August 2008ruling, and told Comcast to stop using Sandvineand to fully inform consumers and the FCCabout how it was planning to manage networktraffic in the future (Federal CommunicationsCommission, 2008). Comcast was given 30days to comply. Although it did so, it appealedthe decision to the U.S. Court of Appeals ofthe District of Columbia Circuit. The Court ofAppeals would issue its final decision in April2010 (more on this later).

The essence of Comcast’s argument was thatthe FCC had given up its right to regulatebroadband Internet service providers (ISPs) in2002 when it classified cable modem servicesas “information services” and therefore not sub-ject to the “common carriage” rules that appliedto telephone and dial-up Internet services. TheTelecommunications Act of 1996 defined twocategories of services: (1) telecommunicationsservices, which are subject to mandatory regu-lation as common carriers under Title II of theAct; and (2) information services, which areconsidered private carriers not subject to com-mon carrier regulation. Whereas common carri-ers are required to serve all customers on equalterms (they cannot discriminate or deny servicesto anybody), private carriers can decide whichcustomers to serve and what prices to chargethem. These two categories of services, origi-nally called “basic” and “enhanced” services inthe FCC’s Computer II inquiry in the 1970s,were incorporated into the language of the 1996Telecommunications Act (Cherry, 2008; Noam,1994).

After 2001, the Bush administration and itsallies argued that the best way to get pri-vate companies to compete with one anotherin building new, enhanced telecommunica-tions networks was to even the playing fieldbetween cable and telephone companies. After

the broadband services of cable companies wereexempted from regulation as common carriersin 2002, the telephone companies lobbied hardand successfully for the same exemption forDSL services. In June 2005, the Supreme Courtruled that cable companies did not have to opentheir broadband networks to competitors in whatcame to be called the “Brand X” decision (U.S.Supreme Court, 2005). On August 5, 2005, theFCC voted 4–0 to reclassify DSL from a tele-phone service (subject to common carriage reg-ulation under Title II) to an information service(FCC Reclassifies . . ., 2005).

THE OBAMA ADMINISTRATION

After January 20, 2009, the ObamaAdministration wanted to deliver on thepromises that had been made during the electioncampaign concerning net neutrality. Whileits first concern was dealing with the com-bined financial crisis and recession, it beganalmost immediately to address issues connectedwith broadband networks and services. TheAmerican Recovery and Reinvestment Act of2009, which was part of the larger efforts tostabilize the economy, included an allocationof $7.2 billion for investment in broadbandinfrastructure. It also mandated that the FCCprepare a National Broadband Plan by February17, 2010.

On January 12, 2009, it was announcedthat Julius Genachowski would be President-Elect Obama’s first choice for chairman of theFCC. Genachowski had been the head of theTechnology, Media, and Telecommunicationspolicy working group during the campaign andpart of the transition team after November. Hewas Obama’s classmate at Harvard Law Schooland a legal adviser to Reed Hundt, chairman ofthe FCC during the Clinton administration. Heassumed office on June 29, 2009.

Genachowski announced a new set of prin-ciples for Internet service providers, buildingupon the earlier efforts of Michael Powell. Thereader will recall that Powell proposed four“freedoms” to protect consumers in 2004 thatwere revised and incorporated into the FCC’sPolicy Statement in 2005:

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• Freedom to access content• Freedom to use applications• Freedom to attach personal devices• Freedom to obtain service plan information

To these, Genachowski added two additionalprinciples in a speech delivered on September21, 2009:

• “Broadband providers cannot discriminateagainst particular Internet content or appli-cations.”

• “Providers of broadband Internet accessmust be transparent about their networkmanagement processes.” (Genachowski,2009)

Vint Cerf of Google approved strongly ofthe proposed rules. He said Google “could notbe more pleased to see Chairman Genachowskitake up this mantle, and we look forward toworking with the commission as it finalizesits plans” (Reed, 2009). He stated his supportfor the idea that “the Internet [remain] a plat-form for innovation, economic growth, and freeexpression.” Larry Lessig, Gigi Sohn of PublicKnowledge, and representatives of Amazon,the Consumers Union, and the ConsumerFederation of America were also pleased withthe speech (Schatz, 2009). The two otherDemocratic members of the FCC, MignonClyburn and Michael Copps, both expressedtheir support. Congressional Democrats alsosupported Genachowski’s ideas. Speaker ofthe House Nancy Pelosi (D-California) andSenate Commerce Committee Chairman JayRockefeller (D-West Virginia) praised thespeech (Eggerton, 2009).

Genachowski’s speech resulted in immedi-ate pushback from telephone and cable com-panies and their allies. The telephone indus-try’s main lobbying group, USTelecom, saidthat “the bar needs to be set very high when itcomes to additional government intervention.”The National Cable and TelecommunicationsAssociation said “any regulation in this arenashould be approached with great caution andonly in the most targeted way, and to advocatepolicies that avoid government entanglement in

operational decisions that could undermine thevery dynamism of the Internet we all seek topreserve.” AT&T argued that the FCC may beheaded toward regulating wireless services in“the absence of any compelling evidence ofproblems or abuse that would warrant govern-ment intervention” (Eggerton, 2009).

In the Congress, Senator Kay BaileyHutchison (R-Texas) led the Republican coun-terattack. In late September, 2009, she issuedthe following statement:

I am deeply concerned by the direction [inwhich] the FCC appears to be heading.Even during a severe downturn, Americahas experienced robust investment andinnovation in network performance andonline content and applications. For thatinnovation to continue, we must treadlightly when it comes to new regulations.Where there have been a handful of ques-tionable actions in the past on the partof a few companies, the commission andthe marketplace have responded swiftly.(Eggerton 2009)

Other Republicans also expressed their objec-tions. Senators John Ensign (R-Nevada),Sam Brownback (R-Kansas), David Vitter(R-Louisiana), Jim DeMint (R-South Carolina),and John Thune (R-South Carolina) all sup-ported Senator Hutchison’s views. ChairmanGenachowski attempted to reach out to theRepublican legislators to address their con-cerns, but the partisan divide on net neutralitywas as wide as it had been during the Bushadministration.

As a way of trying to build support for thenew rules, Genachowski authorized the creationof a new Web site, OpenInternet.gov, for onlinediscussions about the future of the Internet. Thesite included a blog that tracked the decisionsthat the FCC was considering in connection withthe Internet and broadband services. In an inter-view on YouTube in February 1, 2010, PresidentObama stated strong support for Genachowski’sinitiative:

I’m a big believer in Net Neutrality. . . .

My FCC Chairman Julius Genachowski

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has indicated that he shares the view thatwe’ve got to keep the Internet open, thatwe don’t want to create a bunch of gate-ways that prevent somebody who doesn’thave a lot of money but has a good ideafrom being able to start their next YouTubeor their next Google on the Internet.(YouTube, 2010)

President Obama and Chairman Genachowskiwere attempting clearly to reframe the net neu-trality issue under a new rubric, an “openInternet,” in which the main goal was to fos-ter innovation and to maintain low barriers tomarket entry for innovative firms.

THE INTERNET FREEDOMPRESERVATION ACT OF 2008

AND 2009

In February 2008, Edward Markey (D-Mass.)and Charles Pickering (R-Mississippi) madeanother attempt to legislate net neutrality guar-antees by amending the TelecommunicationsAct in the form of the Internet FreedomPreservation Act of 2008 (H.R. 5353). Thebill never made it out of committee. InJuly 2009, Edward Markey (D-Massachusetts)and Anna Eshoo (D-California) introduced theInternet Freedom Preservation Act of 2009(H.R. 3458). Again it called for amending theTelecommunications Act to include net neutral-ity guarantees, but this time it included provi-sions for “reasonable network management,” inan obvious attempt to throw a bone to the tele-phone and cable companies. Support for the billwas immediately forthcoming from Free Press,Public Knowledge, Save the Internet, and sim-ilar groups. Opposition came, as usual, fromthe telephone and cable companies and theirRepublican allies.

During the first quarter of 2010, accord-ing to the Center for Responsive Politics,opponents of net neutrality spent $19.7million lobbying against net neutrality legisla-tion. Proponents spent only $4.7 million. AT&Tspent $2.6 million, Comcast spent $2 million,and Verizon spent $1.2 million. USTelecom andthe National Cable and Telecommunications

Association (NCTA) also contributed to thelobbying effort on behalf of the telephone andcable companies. Amazon, Microsoft, andGoogle were the main firms lobbying in favorof net neutrality (Blumenthal, 2010a). Realizingthat they would probably have to do more,Google and Microsoft upped the ante in thesummer of 2010 by hiring an additional 112former government officials to help them intheir lobbying efforts (Blumenthal, 2010b).

THE COMCAST RULING AND THENATIONAL BROADBAND PLAN

On April 6, 2010, the U.S. Circuit Courtof Appeals for the District of Columbia ruledthat the FCC did not have to authority toregulate Internet service providers under theTelecommunications Act of 1996, and there-fore that Comcast was not subject to FCC rulesregarding traffic management methods (see thesection above on “Comcast Throttles BitTorrentData Streams”). The Court accepted the argu-ments of Comcast’s attorneys that the FCC gaveup its authority to regulate ISPs when it reclas-sified first cable modems and then DSL asinformation services and therefore not subjectto Title II of the 1996 Act (United States Courtof Appeals for the District of Columbia Circuit,2010).

The Obama administration was taken abackby this ruling, but Chairman Genachowskidecided to use the public unveiling of theNational Broadband Plan as an opportunity toreframe and explain the administration’s stancetoward net neutrality. The American Recoveryand Reinvestment Act of 2009 mandated that theFCC prepare and publish a National BroadbandPlan by February 2010. The FCC released thePlan in March. It called for transforming theUniversal Service Fund, which held roughly $9billion in funds, from “supporting legacy tele-phone service to supporting broadband commu-nications service . . .” (Genachowski, 2010). Italso called for the following:

• Protecting consumers and promotinghealthy competition by, for example,

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providing greater transparency regard-ing the speeds, services, and pricesconsumers receive, and ensuring thatconsumers—individuals as well as smallbusinesses—are treated honestly and fairly

• Empowering consumers to take control oftheir personal information so that they canuse broadband communications withoutunknowingly sacrificing their privacy

• Lowering the costs of investment—forexample, through smart policies relating torights-of-way—in order to accelerate andextend broadband deployment

• Advancing the critical goals of protectingAmericans against cyber-attacks, extend-ing 911 coverage to broadband communi-cations, and otherwise protecting the pub-lic’s safety

• Working to preserve the freedom and open-ness of the Internet through high-levelrules of the road to safeguard consumers’rights to connect with whomever theywant; speak freely online; access the lawfulproducts and services of their choice; andsafeguard the Internet’s boundless promiseas a platform for innovation and communi-cation to improve our education and healthcare, and to help deliver a clean energyfuture (Genachowski, 2010)

In a speech delivered on May 6, 2010,Chairman Genachowski explained the philoso-phy behind the National Broadband Plan, call-ing it a “third way” between “heavy-handedprescriptive regulation” and the “light-touchapproach” of the past, which in his view hadbeen a failure. He tried to reassure potentialopponents that he supported the idea of lettingthe market be the main determinant of broad-band development by ensuring that returns oninvestment in this area would be attractive to pri-vate firms. The government, he argued shouldfocus on “core infrastructure and public safetychallenges, providing the basic rules of the roadto enable markets to work fairly, acting in acalibrated way when necessary to protect con-sumers and promote competition, investment,and innovation . . .” (Genachowski, 2010).

In this speech, Chairman Genachowskiincluded his thoughts about how the FCC should

deal with the recent Comcast ruling. He arguedthat there were two possible responses. TheFCC could continue to try to regulate broadbandservices under the Title I “ancillary authority”provisions of the Telecommunications Act, orit could reclassify broadband services as “com-munications services,” therefore “restoring theFCC’s direct authority over broadband com-munications networks but also imposing onproviders of broadband access services dozensof new regulatory requirements” (Genachowski,2010). Because he did not think either of thesealternatives was desirable, he proposed a “thirdway:”

• Recognize the transmission component ofbroadband access service—and only thiscomponent—as a telecommunications ser-vice

• Apply only a handful of provisions ofTitle II (Sections 201, 202, 208, 222, 254,and 255) that, prior to the Comcast deci-sion, were widely believed to be within theCommission’s purview for broadband

• Simultaneously renounce—that is, forbearfrom—application of the many sections ofthe Communications Act that are unnec-essary and inappropriate for broadbandaccess service

• Put in place up-front forbearance andmeaningful boundaries to guard againstregulatory overreach (Genachowski,2010)

REACTIONS TO THE NATIONALBROADBAND PLAN

Telephone and cable companies and theirpolitical allies strongly criticized Genachowskifor “legal overreach” and threatened a series oflegal challenges to the FCC’s efforts to reclas-sify Internet services as proposed in the NationalBroadband Plan (Romm, 2010). RepresentativeJoe Barton (R-Texas) argued that none ofGenachowski’s proposals was needed. He said,“We’ve got a broadband deployment programright now—it’s called free enterprise. This isa solution that’s looking for a problem that Idon’t believe exists” (Gross, 2010). On May

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12, 2010, the House Minority Leader, JohnBoehner (R-Ohio), and the Minority Whip, EricCantor (R-Illinois), sent a letter to PresidentObama voicing their opposition to the NationalBroadband Plan. They accused Genachowski oftrying to do an end-run around Congress inreclassifying Internet services without amend-ing the Telecommunications Act. They arguedfurther that the Plan “threatens to slow job-creating investments and jeopardizing our eco-nomic recovery” (Boehner & Cantor, 2010).Tom Tauke, Executive Vice President of PublicAffair for Verizon Communications, said “Theregulatory and judicial proceeding that willensue can only bring confusion and delaythe important work of continuing to buildthe nation’s broadband future” (Kang, 2010).Comcast, Qwest, the CTIA, and the NCTA allexpressed disappointment with the Plan and thespeech.

On the other side, Gigi Sohn of PublicKnowledge, expressed relief that Genachowskihad risen to the challenge presented by theComcast decision:

Look, 10 days ago I came out of thechairman’s office feeling very depressedabout where things were going, but thingschanged. This means supporters will haveto drop everything and keep campaigningfor this. If this isn’t a seminal moment forthe Internet, I don’t know what is. (Kang,2010)

The Open Internet Coalition, which includedAmazon, Google, and eBay in its membership,also favored the proposed changes.

On May 24, 2010, 74 House Democrats sent aletter to Chairman Genachowski urging him notto go ahead with plans to reclassify Internet ser-vices (McCullagh, 2010a, 2010b; Rosenbaum,2010) A key question, therefore, was whether itwould be possible to reclassify Internet serviceswithout amending the Telecommunications Actto include net neutrality guarantees—that is, toprovide a stronger legal basis for the FCC’s newefforts to lightly regulate the Internet—givenstrong opposition from Republicans and someDemocrats, which reflected intense lobbying

efforts on the part of telephone and cable com-panies.

THE GOOGLE–VERIZON PROPOSAL

The FCC convened meetings of Internet com-panies, carriers, and public interest groups dur-ing the spring and summer of 2010 in orderto find common ground that could form thebasis for an overall agreement on broadband ser-vices. On August 9, 2010, Google and Verizonunveiled a proposal to the FCC for regulat-ing broadband that represented a possible com-promise between net neutrality proponents andopponents. Their intention was to

. . . craft a balanced policy framework

. . . guided by two main goals: 1. Usersshould choose what content application,or devices they use, since openness hasbeen central to the explosive innovationthat has made the Internet a transformativemedium, and 2. America must continueto encourage both investment and innova-tion to support the underlying broadbandinfrastructure . . . (Davidson, 2010)

Under the proposal, the FCC would have theauthority strictly to enforce network neutral-ity rules for wire-line broadband services (bothcable modem and DSL) but not wireless (cellu-lar) networks. The purpose of nondiscriminationrules “should be to prevent harm to users orto competition.” Internet applications would notbe regulated in this way. Also excluded wouldbe “additional service options” not currentlyoffered to broadband customers. The proposalcontained language suggesting that broadbandservice providers should have the right to man-age their networks to preserve “a robust, openInternet” and to prevent the illegal sharing ofcopyrighted material as provided for under theDigital Millennium Copyright Act (Davidson &Tauke, 2010).

Ivan Seidenberg, CEO of Verizon, explainedthat the proposal excluded cellular networksbecause of the desire to encourage the fur-ther building out of wireless broadbandnetworks. Chairman Genachowski and other

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FCC commissioners, such as Michael Copps,expressed the desire to extend net neutralityrules to all Internet users. Genachowski said“it is essential that the Internet itself remainopen, however users reach it” (Miller & Helft,2010). But Genachowski had indicated priorto the announcement of the Google–Verizonproposal that he might consider exempting newservices from net neutrality rules. New servicesmight include health care monitoring, advancededucational services, or new entertainment andgaming options. Verizon was intent on offeringits Fios consumer services under this headingand to assure that it would have the option tocontinue to sell dedicated network services tobusiness customers (Reardon & Krazit, 2010).

Google was showing its willingness to com-promise with the cable and telephone companieson wireless and special services issues in orderto make progress on net neutrality. The immedi-ate reaction to the proposal was strongly nega-tive. Part of the problem was that some of thenews coverage called it a “pact” or a “treaty”rather than a proposal. Many journalists andbloggers thought that it represented a deal nego-tiated by the two companies, possibly as a resultof their earlier agreement to bring the Androidoperating system to Verizon cell phones, ratherthan a genuine proposal. Some net neutralityproponents interpreted the proposal as a “sellout” on Google’s part.

Proponents of net neutrality also strongly crit-icized the Google–Verizon proposal for exclud-ing new services and cellular networks, whilenet neutrality opponents continued to criti-cize any form of legal net neutrality guaran-tees as unnecessary regulation. The attemptsby Google, Verizon, and the FCC to con-vince net neutrality opponents that they favoreda “light hand” for government regulation fellon deaf ears. It is not surprising, therefore,that Chairman Genachowski later criticized theGoogle–Verizon proposal for slowing downprogress toward a negotiated settlement: “Iwould have preferred if they didn’t do exactlywhat they did when they did. It slowed downsome processes that were heading to a resolu-tion” (Siegler, 2010).

Somewhat more helpful to the net neutral-ity cause was the support of the Chairman of

the House Energy and Commerce Committee,Henry Waxman (D-New York), for the FCC’sidea to reclassify broadband services as telecom-munications services. At the end of September2010, Waxman attempted to get a new bill guar-anteeing net neutrality to the floor of the Housebefore the fall recess. Waxman said that thebill would not go forward unless it had biparti-san support, so when Representative Joe Barton(R-Texas) informed him that Republicans wereopposed to it, he made the following statement:“. . . the FCC should move forward under TitleII. The bottom line is that we must protect theopen Internet. If Congress can’t act, the FCCmust” (Waxman, 2010).

CONCLUSIONS

To return to the questions posed at the begin-ning of this article, there was clearly a strongrelationship between the net neutrality debateand partisan politics. When the Republicanscontrolled Congress, net neutrality amendmentsto the Telecommunications Act were roundlydefeated. The Republican members of theFCC were opposed to adopting specific rulesto guarantee net neutrality. Although MichaelPowell proposed his “four freedoms,” and KevinMartin was willing to punish Comcast for throt-tling BitTorrent traffic, only the Democraticappointees to the FCC were strongly in favorof net neutrality rules. Republican efforts tokeep net neutrality amendments out of the VideoFranchise Bill in 2006 resulted in DemocraticSenator Ron Wyden’s successful threat to fil-ibuster the bill. Groups like Save the Internetand MoveOn.org had mobilized large numbersof grass-roots supporters for net neutrality. AfterDemocratic electoral victories in 2006, net neu-trality supporters were able to break the stran-glehold on national broadband policy that thetelephone and cable companies and their mostlyRepublican allies had held. Although there weresome Republicans (like Olympia Snowe andJames Sensenbrenner) who supported net neu-trality, most opposed it.

Opposition to net neutrality fit nicely withinthe antiregulatory frame that had allowedRepublicans to win control of the Presidency

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and Congress. Democrats were not united infavor of net neutrality during the period ofRepublican dominance, but increasingly saw itas an issue (like stem-cell research) that couldhelp them with the voters. New sources ofcampaign financing and new lobbying effortsfrom powerful Internet companies such as eBay,Google, and Amazon played a role as well. Afterthe end of Republican Congressional majoritiesin 2006, but even more after the election ofPresident Barack Obama in 2008, the Democratsfelt bound to deliver on their campaign promisesto support net neutrality. President Obama andthe new Democratic head of the FCC, JuliusGenachowski, attempted to reframe the debatein terms of preserving an “open Internet.” Thecourt decision on the Comcast case and theRepublican victories in the midterm election of2010, however, meant that legislated net neu-trality guarantees would not be forthcomingany time soon, and that the only way to getnet neutrality rules in the short term wouldbe if the FCC reclassified broadband servicesas telecommunications services. The FCC rec-ognized this in its decision of December 21,2010. In a straight partisan vote of 3–2, theFCC voted to reclassify broadband services, asChairman Genachowski had foreshadowed inhis response to the Google–Verizon proposal(Castillo, 2010).

The U.S. debate over net neutrality illustratesthe increasing use of the Internet in all its variousforms in contemporary politics, but especially inpolitics involving the future of the Internet itself.Web sites, wikis, blogs, and other Internet toolswere used increasingly to get the message outand to mobilize not just the activists but the pub-lic at large. Even though the Internet had notyet transformed electoral politics, but had onlyresulted in marginal and mostly tactical changes(Bimber, 2003), the debate over net neutralitywas essentially a debate about what role theInternet would play in the future of democracy.

The debate over net neutrality in the UnitedStates is one example of the national debatesover access to network infrastructure. It is animportant example and therefore deserves care-ful observation and analysis if a more generaltheory of politics in this area is to emerge. In theUnited States, partisanship and partisan framing

of the issues were extremely important in defin-ing the parameters of the debate. Partisanshipand partisan framing were not as important inWestern Europe’s debate over similar issues.This suggests that institutional differences maybe useful in explaining cross-country variance.Nevertheless, there are likely to be echoes of theissues that came to the fore in the United Statesin other parts of the world where partisanshipis also an important factor. It will be interestingto see if international variance in policies andpolicy debates in this area can be explained in aparsimonious fashion.

NOTES

1. According to Gigi Sohn, over 98 percent of homebroadband users were connected to the Internet via cableor DSL modems in 2006.

2. This included the Consumer Electrics Association,the Business Software Alliance, the TelecommunicationsIndustry Association, the Semiconductor IndustryAssociation, the National Association of Manufacturers,and the Information Technology Industry Council.

3. When SBC purchased AT&T Corporation toform AT&T Inc. in August 2005, Whitacre was namedChairman and CEO of the new entity. He is currently CEOof General Motors.

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