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Words From Charlie - Foreword to the Forum on Communications and Society 2014 Report

The summer of 2014 was a pivotal time for Internet policy. In the midst of the debate over “Net Neutrality,” nearly four million people commented to the Federal Communications Commission on an issue that in prior years would have been the province of hundreds of interested parties. This citizen outcry will likely change the communications policy-making landscape for years to come.

Net Neutrality is a term that Columbia Law Professor Tim Wu coined a decade ago to describe a series of Open Internet policies aimed at preventing control from Internet Service Providers (ISPs) over what messages a net user has access to. In 2005, following then-FCC Chairman Michael Powell’s 2004 speech setting out four net freedoms, the FCC adopted its Open Internet policies:

  1. Consumers are entitled to access the lawful Internet content of their choice;
  2. Consumers are entitled to run applications and services of their choice, subject to the needs of law enforcement;
  3. Consumers are entitled to connect their choice of legal devices that do not harm the network; and
  4. Consumers are entitled to competition among network providers, application and service providers, and content providers.

When the FCC found that Comcast Corporation violated one of those policies by allegedly throttling BitTorrent users, the U.S. Court of Appeals reversed the Commission’s decision, saying that it had not given an adequate jurisdictional basis for the action. In response, the FCC adopted in 2010 a set of “Open Internet” rules, essentially affirming its original policies but making it clear that there was to be no blocking or unreasonable discrimination. But when it adopted these rules, the FCC still viewed ISPs as information services, not telecommunications carriers. Accordingly, the FCC used Section 706 of the Communications Act, aimed at encouraging innovative uses of the Net, as its basis for jurisdiction, not Title II, which governs common carriers.

Again the U.S. Court of Appeals reversed on jurisdictional grounds. It suggested that 706 might be a valid basis, but that the FCC had not properly articulated why it was in this instance. This led to the Open Internet proceeding that generated so much public attention in 2014.

But something happened on the way.

For one thing, the new FCC Chairman, Tom Wheeler, was moving along the path of justifying the same Open Internet rules under Section 706, but allowing for the possibility of “paid prioritization” within those rules. This was an ambiguous area of the old rules—could a content company pay the carrier to give it more bandwidth to get its product, namely, video streaming, to the consumer without delays of buffering?

Upon learning that this was a possibility, a number of public interest advocates created a public campaign against “fast lanes” and urged that the best way to assure Net Neutrality in the future would be by declaring the ISPs as telecommunications carriers subject to Title II, the section that covers common carriers. They argued that the FCC did not have to impose the full regime of common carriage. That is, it could forbear from some of the regulation, but that this would be the best assurance that the rules would be upheld. From that point, a campaign reminiscent of the Stop-SOPA movement (netizen protest of stifling copyright legislation headed for passage in the U.S. Congress) generated millions of comments to the FCC. Comedian John Oliver devoted a substantial portion of his HBO show to the issue, urging his viewers to write in. And eventually the President issued a statement that he preferred the Title II approach.

It was within this context that the Aspen Institute convened its annual Forum on Communications and Society on “Strengthening a Free and Open Internet.” Forty leaders and activists from various elements of the Net gathered over three days in August 2014 to address issues related to openness on the Net. They pondered what one could learn from the public outpouring of comments, informed to a great extent by an analysis from San Francisco-based data analysis firm Quid. And at the request of a sitting FCC Commissioner, sought to suggest a series of principles that a policy-maker might use in considering the merits of an important policy debate such as this one.

The speed of events the past year has made the typical report of an Aspen Institute Communications and Society Program forum a bit obsolete. Accordingly, the Program has pared a more extensive report of the meeting down to the more lasting elements. In essence, this is a broadening of the conversation around Open Internet rules—from what the rules should entail (mostly agreed upon by representatives from both political parties for a decade), and what the jurisdictional bases for those rules should be (hotly contested) to the broader principles offered in the report that follows.

What principles should regulators employ in considering communications regulation going forward? We hope, with this report, to start that broader debate, knowing that the rules will need refinement, that new issues will arise, and that the surrounding milieu will change.

Charles M. Firestone
Executive Director
Communications and Society Program
The Aspen Institute
June 2015

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