The fight over net neutrality — which has been brewing for awhile — came to a head this year after a federal appeals court struck down the Federal Communications Commission’s Open Internet Order of 2010 in January of this year. The appeals court ruling essentially deregulated the nation’s industry of internet providers, but gave the FCC the option to write new regulations. Within weeks, the FCC had voted to open themselves up to a 4-month comment period, and then to develop new rules governing the internet.
These events have been seen by net neutrality advocates as a momentous opportunity to establish federal regulations over the distribution of the internet that ensures it is equally accessible to all users.
But, last week, the nation’s largest coalition of civil rights organizations — the National Minority Organizations collective — submitted a joint letter to the FCC in support of deregulation of major internet providers, and apparently against the option favoured by the net neutrality movement.
So, what is the fight really about?
The fight over net neutrality is really over the degree to which internet service providers (ISP) can generate extra revenue by monetizing content access. One major point of contention is a practice called “paid prioritization”: ISPs creating paid internet “fast lanes” that produce high download speeds for some content in exchange for money from the content provider.
One of the most compelling pieces of evidence showing that major ISPs are already engaging in paid prioritization is in this widely-shared graph. It shows changes in average download speed of Netflix content through Comcast ISPs: download speeds were relatively stable until Comcast and Netflix entered into negotiations late last year. During that four-month period, download speeds dropped substantially. Weeks after a direct connection contract was signed, average download speeds for Netflix streaming on Comcast increased by 150%.
The increase in speed after direct connection is less relevant than the sudden slow-down prior to the signing of the agreement, which suggests that Comcast was effectively regulating users’ Netflix content access as a negotiation tactic.
Net neutrality advocates are troubled by graphs like this one. They argue that ISPs should not have the power to promote, or limit, any form of internet access based on the kind of content that is being accessed.
These net neutrality advocates favour reclassifying ISPs as “common carriers”, which would have them falling under “Title II” of the Communications Act of 1934 (an act that has itself been amended and updated to reflect more modern technology). Title II contains existing regulations — outlined in several pages’ worth of rules — that would disallow a practice like paid prioritization, under the reasoning that common carriers are creating a communications infrastructure, and therefore should not have a say over the content of the communication they provide. Title II further establishes regulations to ensure that common carriers can not discriminate by disproportionately applying charges that favour some users over others.
But major ISPs are against Title II reclassification for obvious reasons: it would place strict regulations on how these ISPs can operate, and specifically how they can pad their bottom lines by controlling download speeds.
Instead of strong federal regulation, major ISPs favour an FCC ruling that would have them fall under Section 706 of the 1996 Telecommunications Act, a vague proclamation two paragraphs long that focuses on limited federal regulation in order to “promote competition”. While the FCC would have the ability to intervene in situations where they are acting to “remove barriers to infrastructure investment”, they would be largely powerless to stop practices like paid prioritization. Basically, the FCC would exist only to help ISPs increase the size of their customer base, and nothing more.
Last week, the National Minority Organization (NMO) — a coalition of over 40 of the nation’s most prominent civil rights groups — bizarrely came out in favour of the Section 706 option, and against Title II reclassification. Alongside respected organizations like the NAACP and Rev. Jesse Jackson’s Rainbow/PUSH, NMO includes some of the nation’s largest and oldest Asian American political groups, including OCA — Asian Pacific American Advocates, (formerly Organization of Chinese Americans), the Japanese American Citizens League (JACL) and the Asian Pacific American Institute for Congressional Studies (APAICS) — as well as the Council of Korean Americans and the Asian/Pacific Islander American Chamber of Commerce & Entrepreneurship.
In their letter to the FCC last week, NMO rightfully notes that “access to broadband, adoption, and digital literacy are critical civil rights issues” and further provides ample evidence that while internet use is high among some minority communities, many impoverished areas that are typically populated by people of colour remain under-served. NMO further notes that in this age, digital access is critical for promoting education and upward economic mobility. Where we do not disagree is when the NMO writes:
Without broadband access, low income and middle-class Americans — and particularly people of color — cannot gain new skills, secure good jobs, obtain a quality education, participate in our civic dialogue, or obtain greater access to healthcare through telehealth technologies.
It is exactly this reasoning that leads me to conclude that ISPs should not be permitted to continue their role as our digital gatekeepers. Internet access is indeed critical for full contemporary citizenship; therefore, NMO’s reasoning is exactly what leads me to the conclusion that ISPs should be treated like common carriers: companies whose mission it is to provide a necessary service to the general public without discrimination because that service is of widespread benefit to all citizens, and who do so under federal license and regulation.
Yet, despite arguing that broadband access is a civil right, NMO finds itself somehow arguing in favour of a system that permits (and indeed encourages) discriminatory internet access, and where users are subject to the capitalist whims of corporate ISPs.
NMO argues that Title II reclassification will harm market competition, which they argue will in turn hurt broadband adoption by underserved minority communities. Notably, however, this latter assertion is almost completely uncited in a letter that is otherwise funky with footnotes; instead this statement amounts to broad and largely baseless hand-waving:
Overly burdensome regulations treating broadband as a public utility (31) would institutionalize second class digital citizenship, needlessly delaying the digital inclusion goals sought by communities of color. This result would harm both consumers of color and minority entrepreneurs, for whom the Internet has been their easiest path to entry to bring new content to their communities and the nation.
NMO’s concerns over the effect of Title II on the cost of broadband adoption rates strikes me as particularly odd: classification of telephone service providers as common carriers has not appeared to significantly hamper phone access (or minority entrepreneurship) for the country’s communities of colour.
Instead, NMO argues that ISPs should fall under Section 706-mediated deregulation, coupled with vague “consumer protections” and a “presumption against paid prioritization” (the latter of which they also argue in a footnote is largely a non-issue). While this is laudable sentiment, Section 706 offers no legal clout whereby the FCC could a priori prevent ISPs from employing discriminatory practices. Instead, NMO offers a solution for how paid prioritization practices would be discouraged under Section 706: yet, their solution involves after-the-fact relief and punishment, and appears to place the burden for identification and correction of any such practices squarely on the consumer. It is, in essence, a system that would allow ISPs to do whatever discriminatory thing they think they could get away with.
This bizarre anti-net neutrality stance by the nation’s top minority and civil rights organizations is troublesome to me, particularly because their reasoning regarding the right of citizens to digital access as outlined in the first half of the letter seems to deviate so sharply in rationale from their pro-big business prescriptions. These are organizations that have historically stood against discriminatory business practices in defense of minority interests. How did these esteemed civil rights organizations get to their anti-net neutrality position?
Republic Report suggests that it might all have something to do with how these large non-profits derive funding. It’s no secret that major non-profit groups like the OCA are backed by major corporate sponsors, and that this sponsorship relationship can lead to some questionable practices. Last year, three OCA summer interns — including the incredible Juliet Shen of Fascinasians and Vanessa Teck of ProjectAVA — were fired for speaking out against Wal-mart’s employment practices; Walmart is a major backer of the group’s national conference (recently Shen and Teck offered a retrospective on the fiasco that is worth a read).
Comcast is vocally lobbying against Title II reclassification of ISPs. OCA named Comcast / NBC Universal its winner of the “Outstanding Corporate Partner Award” last year. Comcast was also a major Gold-level sponsor of JACL’s 2014 convention. The NAACP is sponsored by a number of major corporations, including but not limited to Comcast (as well as the nation’s largest for-profit university, University of Phoenix, which employs predatory lending practices predominantly against people of colour).
While I won’t go so far as to say that Comcast and other major ISPs have purchased the nation’s top civil rights organizations with its corporate sponsorships, it is also not unreasonable to conclude that these non-profit organizations — which rely on corporate support to stay afloat — are financially positioned in such a way that they cannot or will not speak out against the corporate interests of their backers. Non-profits of this size are not solvent on small donor money alone; but their acceptance of corporate money leaves them in an ethical quandry, and can result in a situation like this one: several major civil rights organizations have partnered with large internet service providers to protect the same predatory business practices that victimize their very own marginalized, oppressed and disenfranchised constituents. We clearly need to re-examine our current system of supporting non-profit organizations, and how their civil rights goals can become compromised in the unending fight to avoid bankruptcy.
In the end, there is some room to disagree on the topic of net neutrality when it comes to Title II reclassification vs. Section 706, particularly in terms of how increased FCC regulation of ISPs might increase operational costs that can potentially discourage minority small businesses. Even net neutrality advocates will agree that Title II reclassification is a practical, but imperfect, solution. But, the arguments provided by NMO in their FCC letter offered no logical basis for the discrepancies between their assertion that internet access is a civil right and their conclusion that strict federal protection of this civil right is unwarranted — a conclusion favoured by at least one of their shared corporate backers. I think the critical need for widespread, fair and neutral internet access as a protected basic civil right of the digital age far outweighs any possible risk of a small amount of increased costs to select entrepreneurs.
To that end, I fail to understand how we can permit a system wherein the major civil rights organizations that we trust to advocate on behalf of those civil rights can find themselves accepting corporate money that clearly arrives with at least some “strings attached”.
(Note: If anyone from any of the organizations cited in this post reads this and wants to offer any additional explanation about their position against Title II reclassification and specifically how this option would hurt people of colour, I would be happy to work with that person to publish it as a counter-point to this article.)