The outcome of a court case in the US has the potential to totally reshape the Internet.
In the second week of January, a panel of three-judges of the US Court of Appeals for the District of Columbia Circuit struck down the attempt by the US Federal Communications Commission (FCC) to enforce net neutrality on US-based internet service providers (ISPs).
It is just the latest shift in the arrangement of the legal processes that are rapidly growing around broadband services generally and will have consequences in Australia.
The decision hinged around the FCC’s identification of ISPs as ‘common carriers’, in similar ways to its identification of the telephone service as a common carrier. The concept of ‘common carrier’ is very old in the history of mercantile law.
A common carrier cannot pick and choose what is carried and for whom it is carried: that right applies only to contract carriers. In addition, a common carrier is responsible for the safe delivery of the goods in the condition they were uplifted: a contract carrier may contract qualifications to that duty.
There are favourable implications for ISPs of being a common carrier. As the Australian iiNet case ruled, the ISP is not responsible for content, thus is not implicit in copyright violations by customers. On the other hand, being a common carrier mean that an ISP must treat all content equally, even traffic sources from you competitors.
The FCC’s woes
The trouble for the FCC is that in a spirit of deregulation of communication regulation that has been on the go in the US for more than two decades, the FCC decided not to identify broadband services as a telecom, but then proceeded to regulate broadband as if it was a telephone service.
As Judge David Tatel wrote in the decision handed down by the panel, ‘Given that the Commission has chosen to classify broadband providers in a manner that exempts them from treatment as common carriers, the Communications Act expressly prohibits the commission from nonetheless regulating them as such.’
Net neutrality has been a top agenda item for the Obama administration thus something that the Republicans oppose. Obama's first FCC chairman, Julius Genachowski, was strongly urged to reclassify broadband as a telecom service but declined in the face of strong Republican opposition.
Republican opposition seems to stem from three sources: First, a doctrinal opposition to government regulation, per se. If broadband is identified as a common carrier, the FCC would have legal power to set economic terms and conditions for the ISP market, that is, set rates and influence profits.
Second, a belief that competition between existing ISPs and new field entrants will yield a superior service. Third, the market, not the government, should provide the funds for the provision of high speed broadband services.
The competition argument founders on the observation that while the US is one of only two countries to have three fully deployed broadband technologies, cable, telephone and 4G wireless LTE, the three competing connection technologies are frequently on offer by the same ISP. And that ISP is likely to be owned by one of the monopoly telecom service provider. It is a choice of meals, not a choice of restaurants.
The third is about how you see national infrastructure: the duty of government or the private sector, or both?
The fear is that without net neutrality, service providers will discriminate between services, either by slowing delivery speeds, or extorting fees from content providers not to discriminate. Big losers would be the general public whose choices would be constricted by the business affiliations of their ISP. It would be like having only one TV station available. You watch what the station decides to put to air.
The other big losers would be streaming and video download services like Netflix who could be up for millions in access fees, fees that would flow on the consumer.
But there is another issue that need be considered. Should companies whose focus is strictly technical, have a say in the social uses of broadband services? It would seem that freedom to communicate, worldwide and cheaply, would also be at risk, if ISP were to choose customers or content.
A parallel universe
Almost two decades ago, your correspondent wrote an article, ‘Lords of the Parallel Universe’, for Metro Magazine.
It looked at how access to communication technology had changed rapidly over the preceding decade. How free access to world-wide communication was shifting from people like radio amateurs into the hands of anyone with access to a computer in the parallel universe of the Internet. It also raised the need for legislation to ensure a new elite of ‘Net-techies’ did not rule over the Internet.
While the radio spectrum is a public asset, access to it was not a right but a privilege bestowed by the government on qualified people. For an amateur radio operator, the privilege was earned by study and examination. In return he (and amateurs were, and are, mostly he) had wide access to allocated frequency bands throughout the radio spectrum. Many built their own transmitters and receivers, or after World War II, converted military surplus equipment; the financial price of entry was minimal and worldwide communications was yours dependent only on the natural fluctuations in long distance radio propagation.
Today, interpersonal communication has been democratised by the internet. The technical skills required of users are minimal.
The technology is hidden behind the computer screen, hidden behind the man-machine interface. The new technologies are vastly more complex than earlier communication technologies, but they appear simpler because the complexities are mediated by the invisible lords of the parallel universe, a new elite, the Net techies.
These lords are not participants in the communication process and their ultimate loyalty is likely to be the continued profitability of their employers, not the social, political and democratic interests of the users.
We need a guarantee that the lords of the parallel universe cannot use their specialist knowledge and control to mandate or veto content. A similar quality of access that exists for the natural radio frequency spectrum must be legislated for the parallel universes of the Internet or its potential for social good may be compromised by the commercial imperatives of an imperfect market place.
Net neutrality is a step in that direction.
Dr Vincent O'Donnell is the media policy editor at Screen Hub and an executive producer at Arts Alive. This article is an edited version of an article first published in Screen Hub.