On Reddit, Mozilla and Upworthy, along with others, took

On July 27th, 2017, Internet consumers rallied more than
125,000 websites, Internet users, organizations, and companies to participate
in a massive online protest against the Federal Communications Commission’s
plan to jettison protections put in place by the Obama administration which
kept the Internet protected from data throttling and extra fees.1 In this “Net Neutrality Day of
Action,” protesters gathered in Washington D.C., appeared at Congressional
district offices to speak with representatives, posted YouTube videos
explaining the importance of net neutrality, created Reddit threads, called
Congress and engaged in various other efforts to fight for continued network
neutrality regulations.2 In
total, protesters sent over 5,000,000 emails to Congress, posted over 2,000,000
comments through the Federal Communications Commission’s webpage, and made over
120,000 calls to Congress in a show of dissatisfaction with the Federal
Communications Commission’s wavering support of net neutrality.3

The July 2017 protests were not the public’s first attempt
to rally government and the Federal Communications Commission’s support for net
neutrality regulations.4 In
June of 2014, John Oliver addressed net neutrality on his HBO news satire show Last Week Tonight with John Oliver in an
attempt to incite consumer activism. As a result, the Federal Communications Commission’s public webpage received
millions of comments that favored net neutrality regulations.5 In
fact, the webpage received such a high volume of comments its servers
overloaded and crashed, forcing it to go offline for several hours.6

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Internet consumers are not alone in opposing lackadaisical
or non-existent net neutrality regulations; the corporate world has pushed back
as well.7 In
2014, Twitter, Netflix, Reddit, Mozilla and Upworthy, along with others, took
place in an “Internet slowdown protest” in which these websites posted banners
on their pages and applications with the “loading symbol” icon to raise
awareness of the need for strong net neutrality regulations.8 When
President Trump discussed his plan to cut back on pro-net neutrality
regulations in 2017, corporations— this time in much larger numbers than seen
in 2014—held another day of protest. On July 12th, 2017, over 170 internet
services, including Google, Amazon and Pornhub, throttled their internet-based
services in protest of the possible abandonment of net neutrality regulation.9

These protests are not isolated incidents: throughout the
past decade, there have been numerous protests and rallies as commentators hotly
debated the topic of net neutrality.10 Internet
service providers, consumers, and website and application designers have placed
great pressure on Congress and the Federal Communications Commission to change
regulation in this area; however, this pressure tends to be split.11 Internet
service providers such as AT&T, Comcast, and Verizon typically favor
deregulation of the market, while the general population, application
designers, and web-based service providers such as Amazon, Apple, and Netflix
tend to heavily support regulation that favors net neutrality.12 While
policymakers continue to debate the need for telecommunications policy reform,
no clear-cut answer has emerged as to what type of regulatory approach should
be taken to ensure an open Internet; some suggest that the market is
competitive enough to function without regulation while others argue for even
stronger regulation than we have today.13

            So, the question becomes: who should decide how consumers
use the Internet? Are usage determinations best left to massive corporations
which provide Internet access to users, or should the Federal Communications
Commission adopt regulations that aim to ensure an open and freely-accessible
Internet? Furthermore, considering the complicated web of split court decisions
which ultimately gave the Federal Communications Commission jurisdiction to
regulate the Internet, the lack of Congressional intervention, and the strong
pushback on regulation from Internet Service Providers, should net neutrality
regulations still exist? The answer to these questions have far reaching and
deeply meaningful implications for the lives of every American.14

 Due to the
magnitude of this debate, it is imperative that readers not only understand the
underlying debate that surrounds net neutrality, but that they also understand
how the conclusion of this debate can affect various aspects of consumers’
everyday life. How consumers access information, participate in social media,
communicate with their long- distance friends and family, and even how they
access media are all subject to change with future shifts in net neutrality
regulation.15 This
paper will be partitioned into five parts. Parts I and II, respectively, will
discuss the technical and legal background from which the net neutrality debate
has sprung. Part III will explain how the Federal Communications Commission
gained jurisdiction to regulate net neutrality. Part IV will explain and
analyze the current policy debate over the regulation of net neutrality.
Lastly, Part V will conclude with a discussion of why the current
administration’s stance on net neutrality is misguided and what this could mean
for the future of Internet service in the United States. With the current
administration’s new goals of light-handed net neutrality regulation,
understanding this debate and the consequences of its conclusion are more
important than ever.

 

I.    
Technical
Background

 

Before readers can understand the merits of net neutrality
regulation, they must understand the technical background of the Internet. This
section will first discuss the historical and technical background of the
Internet, starting with the rise of broadband. Next, this section, this section
will explain how data is transferred to and between consumers. will explain how
data is transferred to and between consumers. Lastly, this section will discuss
the general structure of the Internet and how this structure is relevant to the
net neutrality debate.

A.   Net Neutrality, the Rise of Broadband and the Broadband
Basics

 

Though broadband Internet has been available to Internet
consumers since the early 2000s,

the term “net neutrality”
was not used until 2003, when law professor Tim Wu used the term in his paper
“Network Neutrality, Broadband Discrimination” which examined the “concept
of network neutrality in telecommunications policy and its relationship to
Darwinian theories of innovation while also considering the record of
broadband discrimination practiced by broadband operators in the early 2000s.”16 Although
the term “net neutrality” does not have a single widely accepted definition, it
commonly refers to an Internet regime where broadband Internet Service
Providers (ISPs) charge consumers only once for Internet access.17 Additionally, under a system that is
net neutral, service providers can not favor one content provider over another,
nor do they charge content providers for sending information over broadband
lines to end users.18 To
understand the merits of operating under a net neutral Internet system, readers
must understand how the creation of broadband Internet service gave rise to
this policy debate.

The advent of broadband in the early 2000s vastly changed
the way consumers accessed and used the Internet.19 Before the late
1990s, the majority of residential Internet consumers gained access to the Internet
through a “dial-up” connection.20 A
dial-up connection is one which is forged over a traditional telephone network.21
Under the dial-up Internet connection model, Independent ISPs, such
as AOL, supplied the crucial function of linking the Internet consumer’s
telephone network with the Internet.22

            The
process for an Internet consumer to connect to the Internet before the 1990s
was as follows: first the customer would call a telephone number associated
with his or her ISP’s facilities, then the telephone company would route that
customer’s call through its circuit- switched network as the call went on its
way to the ISP’s facility.23 Next,
the ISP at the receiving end of the exchange provided the protocol conversion
functions needed for communication to occur between the consumer’s computer and
the servers of the Internet applications and content providers.24 The process telephone companies used as common
carrier to route calls to various ISP modem banks was fairly similar to the
manner in which telephone companies routed traditional calls between households.25

            In the late 1990s, residential consumers gained the
ability to use the facility of a local cable company with an affiliated ISP to
bypass the traditional circuit-switching telephone network connection.26
This new bypassing process created Internet access at much faster speeds than
connecting through a dial-up connection had previously allowed.27
With this evolution into faster Internet connection came a policy debate:
should the cable operators providing high-speed Internet access be required to
open their broadband transmission networks to unaffiliated ISPs, much like
telephone companies were required to do in the telecommunications industry?28

As time went on, this policy debate transformed into the
concept of net neutrality.29
Some scholars and those involved in the Internet technology industry drew
parallels between the transmission of broadband and the right to share web content.30
While the original open access proposals suggested granting ISPs rights of
“nondiscriminatory” access to the broadband transmission platform,
net neutrality proposals aimed to extend such rights to the providers of Internet
applications and content.31

            By the early 2000’s, the Internet was vastly changed,
once again, by the advent of broadband Internet and the ability to split
signals.32 The
term broadband “commonly refers to high-speed Internet access that is always on
and is faster than the traditional dial-up access.33 “Splitting
signals” means that the signal from one line can be split between telephone
service and Internet access, allowing users to connect to and browse the Internet
without sacrificing the ability to make phone calls.34
With this new technology came faster connections as well as easier browsing and
increased downloading capacities.35
Broadband allowed consumers to download files, songs and videos at greater
speeds than ever before, paving the way for new types of websites, such as
YouTube and Netflix, that were not feasible under the old structure’s
connection speed.36

            As consumers more heavily used this new technology, the
price of Internet related services began to drop.37
Price decreases allowed a greater number of consumers to use broadband Internet
services, which in turn caused many ISPs to compete with one another in hopes
of servicing incoming consumers.38
Due to this competition in the early 2000’s, it was common for competing ISPs to
offer amenities such as: faster broadband, heavy use broadband and broadband
bundles.39 Today,
nearly everyone in the United States uses some form of broadband: through phone
lines or cable connection.40

B.   
Internet Protocol
Networks

To fully understand the net neutrality debate, readers
must also understand how Internet is defined and some basics of how the
Internet operates and is structured. This section explains the Internet
Protocol and how this structure facilitates data transfer over the Internet to
end users throughout the United States.

The Internet “is not a unitary, centrally managed network;
instead it is an interconnected set of many thousands of constituent networks.”41 These thousands of networks are
joined together through a voluntarily adopted common protocol and addressing
scheme, also known as the Internet Protocol (IP).42
The IP addressing scheme enables “its end users to communicate with end users connected
to other networks for purposes of exchanging higher-layer applications and
content.” 43 IP addressing operates through
a process known as

encapsulation. Encapsulation occurs when
tags that include IP address information are placed within the datagrams being
transferred before they are sent.44 This
process can be analogized to the “United States Postal Service System in that
the United States Postal Service allows a package (a datagram) to be addressed
(encapsulated) and put into the system (the Internet) by the sender (source
host).”45 It
is important to notice there is no direct link between sender and receiver; the
connection between the two is created by ISPs.46

Understanding
this process is key to fully grasping the net neutrality debate for the
following reason: when an Internet user requests information from a website—for
example, the user wants to see a picture on Instagram—the Instagram server
divides the requested picture into very small packets of data, which includes
the requesting user’s IP as the destination address in each of the various data
packets.47 Therefore, the picture
data packets are transmitted to the requesting consumer by using their
individual IP, as the data travels over the network on available routes to
reach the requesting user.48 Pieces
of this picture’s data packet may take different routes to get to the
requesting user and may be received in various orders before it is assembled
and displayed, all in a matter of milliseconds.49 This
process would be impossible without the help of ISPs: “While the content
providers build big web-servers to make their content available, it is ISPs
with their routers, computers, cabling network, wireless transmitters, and
other equipment, which carry the data packets to user’s home machines as and
when requested.”50 Therefore, in a very
broad context, there are three key participants in the Internet industry: ISPs,
companies which operate applications and content on the Internet and Internet
consumers.51

Today,
most IP networks are privately owned and operated.52
The infrastructure of these networks are used “to provide ‘managed’ IP services
unrelated to communications with other IP networks over the publicly accessible
Internet”.53 An example of using an infrastructure
for “managed” services is when a global IP network apportions part of its
network’s capacity for routing and transmitting functions, while also allotting
additional capacity “on the same network infrastructure for the provision of
high-quality videoconferencing over a closed IP network devoted to a
multinational corporate customer”.54 Recently,
as enterprises increasingly depend on Virtual Private Networks55
to support Voice over Internet Protocol56,
enterprise data, storage, and security applications, the Internet Protocol
Virtual Private Network emerged as the most important component of a managed
network service.57

1 July
12th: Internet-Wide day of Action to Save Net Neutrality, Fight for the Future,
https://www.battleforthenet.com (last visited Oct. 16, 2017).   

2 Id.

3 July
12, 2017: Historic #NetNeutrality day of Action Swept the Internet Broke
Records With Millions of Comments to FCC and Emails to Lawmakers, Fight for the Future,
https://imgur.com/a/vYVet (last visited Oct. 16, 2017).   

4 Id.

5 Id.

6 Jon Brodkin, FCC Comment Site Breaks After Comedian Asks Trolls to Fight “Fast
Lanes”, Ars Technica (June 3,
2014), https://arstechnica.com/information-technology/2014/06/fcc-comment-site-breaks-after-comedian-asks-trolls-to-fight-fast-lanes. 

7 Id.

8
Battle for the Net, Fight
for the Future,
https://www.battleforthenet.com/sept10th (last visited Oct. 16, 2017); For
Trump’s Attack on Net Neutrality See Ray
Morris, Trump’s FCC Can’t Block This
Article — For Now, HuffPost (Jul
28, 2017),
https://www.huffingtonpost.com/entry/trumps-fcc-cant-block-this-article-for-nowus
; see also Jessica Corbett, With Midnight Deadline, Final Push to Thwart
Trump’s Attack on Net Neutrality, Common
Dreams (Aug. 30, 2017), https://www.commondreams.org/news/2017/08/30/midnight-deadline-final-push-thwart-trumps-attack-net-neutrality.

9 Rob Waugh, The Internet is Slowing Down This Wednesday to Protest Trump’s Attack
on Net Neutrality, Metro UK (Jul
11, 2017), http://metro.co.uk/2017/07/11/the-Internet-is-slowing-down-tomorrow-to-protest-trumps-attack-on-net-neutrality.

10 See
Richard John, The Next Net Neutrality
Debate, Bloomberg View (Jul
10, 2017),
https://www.bloomberg.com/view/articles/2017-07-10/the-next-net-neutrality-debate;
Kif Leswig No Paid Fast Lanes, Business Insider (Aug. 31, 2017) http://www.businessinsider.com/apple-comment-net-neutrality-no-paid-fast-lanes-Internet-2017-8;
Another Debate About Net Neutrality in
America, The Economist (Apr
22, 2017), 
https://www.economist.com/news/business/21721245-new-head-fcc-will-roll-back-obama-era-rules-another-debate-about-net-neutrality;
Margret Harding McGill, John Oliver Again
Fires up Net Neutrality Debate, Politico
(May 8, 2017) https://www.politico.com/story/2017/05/08/john-oliver-net-neutrality-238132.

11 T.C. Sottek, Comcast, Verizon, and AT&T Want Congress
to Make a Net Neutrality law Because They Will Write it, The Verge (Jul 12, 2017),
https://www.theverge.com/2017/7/12/15959932/comcast-verizon-att-net-neutrality-day-of-action.

12 See
Madeline Purdue, Internet Providers
Respond to the Internet’s Huge Net Neutrality Protest, USA Today (Jul 12, 2017), https://www.usatoday.com/story/tech/news/2017/07/12/how-Internet
Service Providers-responding-Internets-net-neutrality-protest; Giuseppe Marci, Net Neutrality Supporters Pressure FCC to
Extend Comment Deadline, Inside
Sources (Aug. 3, 2017), http://www.insidesources.com/pressure-builds-on-fcc-to-extend-net-neutrality-comment-deadline.

13 Angele
A. Gilroy, Cong. Research Serv., R40616, The
Net Neutrality Debate: Access to Broadband Networks 7 (2017). 

14 See Sergey
Denisenko, The Implications of the end of
Net Neutrality, Tech. Crunch (Feb.
20, 2017),

The implications of the end of net neutrality

15 Id.

16 Tim Wu, Network Neutrality, Broadband Discrimination, 2 J. Telecomm. & High Tech. L. 141,142
(2003).

17 Stuart Minor
Benjamin & James B. Septa, Telecommunications Law and Policy 614 (4th
ed. 2015).  

18 Id.

19 Johnathan E. Nuechterlein, Antitrust Oversight of an Antitrust Dispute:
An Institutional Perspective on the Net Neutrality Debate, 7 J. on Telecomm. & High Tech. L. 20, 25
(2009).

20 Id.

21 Id.
at 26.

22 Id.

23 Id.
at 25.

24 Id.
at 26.

25 Id.
at 26.

26 Id.

27 Id.

28 Id.

29 Id.
at 27.

30 Id.

31 Id.

32 Broadband
History, U Switch, https://www.uswitch.com/broadband/guides/broadband_history
(last visited Oct. 27, 2017).

33
Types of Broadband Connections, FEDERAL COMMUNICATIONS COMMISSION,
https://www.fcc.gov/general/types- broadband-connections (last visited Nov.
20th, 2017). (“Broadband includes several high-speed transmission technologies such
as: DSL, Cable Modem, Fiber, Wireless, Satellite, Broadband over Powerline.”)?

34 Broadband History, supra note
32.?

35 Id.

36 Id.

37 Id.

38 Id.

39 Id.

40 Id.

41 Nuechterlein, supra note 19, at 23.

42 Id.

43 Internet
Protocol (IP), Techopedia, https://www.techopedia.com/definition/5366/Internet-protocol-ip
(last visited Oct. 27, 2017).

44 Id.

45 Id.

46 Id.

47 Ravil Kiran, Net Neutrality Debate – I, Money
Life (April 1, 2015), http://www.moneylife.in/article/net-neutrality-debate-i/41098.html.

48 Id.

49 Id.

50 Id.

51 Id.

52 Id.

53 Nuechterlein, supra note 19, at 24.

54 Id.

55 Ana Henry, Why You Should Be Using a VPN (and How to Choose One), Life Hacker, (Feb. 2, 2017) https://lifehacker.com/5940565/why-you-should-start-using-a-vpn-and-how-to-choose-the-best-one-for-your-needs
(“Put simply, a Virtual
Private Network, is a group of computers or
discrete networks networked together over a public network—namely, the
internet. Businesses use VPNs to connect remote datacenters, and individuals
can use VPNs to get access to network resources when they’re not physically on
the same LAN (local area network), or as a method for securing and encrypting
their communications when they’re using an untrusted public network…When you
connect to a VPN, you usually launch a VPN client on your computer (or click a
link on a special website), log in with your credentials, and your computer
exchanges trusted keys with a far away server. Once both computers have
verified each other as authentic, all of your internet communication is
encrypted and secured from eavesdropping. The most important thing you need to
know about a VPN: It secures your computer’s internet connection to guarantee
that all of the data you’re sending and receiving is encrypted and secured from
prying eyes.”).

56 Voice
Over Internet Protocol, Federal
Communications Commission, https://www.fcc.gov/general/voice-over-internet-protocol-voip
(last visited Oct. 29, 2017) (“Voice over Internet Protocol (VoIP), is a
technology that allows you to make voice calls using a broadband Internet
connection instead of a regular (or analog) phone line. Some VoIP services may
only allow you to call other people using the same service, but others may
allow you to call anyone who has a telephone number – including local, long
distance, mobile, and international numbers. Also, while some VoIP services
only work over your computer or a special VoIP phone, other services allow you
to use a traditional phone connected to a VoIP adapt.”).

57 Nav Chander,
IDC, Advanced IP Services and Cloud
Connectivity with AT’s MPLS-Enabled Virtual Private Network Solution 2
(2016), https://www.corp.att.com/vpn/Advanced_IP_Services_and_Cloud_Connectivity_Exp_062017.pdf.

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