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Q&A: Communications Expert On The FCC Net Neutrality Repeal

Net neutrality regulations prevent broadband service providers from slowing connection, blocking sites, and charging for faster internet speeds.

The Federal Communications Commission voted to repeal net neutrality rules. The decision could have major implications for internet service providers, content creators, and consumers.

WFIU’s Angelo Bautista spoke with Indiana University Media School Professor Barbara Cherry about the impacts of a net neutrality repeal. Cherry has worked in the telecommunications industry with AT&T and Ameritech, and has also worked for the FCC.

This conversation has been edited for clarity and conciseness.

Q: What is net neutrality?

A: Net neutrality is a term that refers to a particular set of public policy issues. It's not actually well defined, and what people mean by it can vary considerably. But at the heart of it is that net neutrality refers to goals, problems and remedies all related to encouraging widespread deployment and access to broadband technology, and, in particular, using this technology to access the internet.

Q: What exactly is this decision about?

A: The net neutrality debate in the United States has evolved to be fundamentally a legal battle. It's a legal battle over whether broadband access to the internet service is a telecommunications service or an information service under federal law in the United States. And why does this classification matter? Because, under federal law, and in particular the Communications Act of 1934, and as amended by the Telecommunications Act of 1996, the powers of the FCC is determined by the classification of a service, and this case telecommunications versus information service.

The vote reverses the classification that was reached in 2015. So in 2015, under a Democratic majority, broadband access to the internet was classified as a telecommunications service, which is a common carriage service.

Q: What is a common carrier?

A: A common carrier simply has to do with a person whose business is to provide a certain functionally. Are you a conduit? Are you essentially just in the business of transporting or moving something from one place to another? That's what makes you a common carrier. In this debate, common carriage is not—underline, score, bold—it is not public utility. Public utility is a totally separate body of law, under state law. Do not equate the two.

"In this debate, common carriage is not—underline, score, bold—it is not public utility."

Unfortunately, some people, whether intentionally or unintentionally, conflate the two. And the impact of the conflation is to mislead people. Now for those who are intentionally misusing public utility and common carriage, it's because they want you to think that common carriage only applies to monopolies and because people tend to the think public utilities are monopolies. This debate has gotten confused in the public because there's been this false equation.

Q: What does this decision have to do with free speech?

A: If you're a common carrier, which means you are only in the business of moving stuff for somebody else, and in communications, you are moving someone else's speech. Under the First Amendment, when you're a common carrier, you are not considered a speaker for First Amendment purposes. But if you're not considered a common carrier, you do have some free speech rights. And that's why [internet service providers] don't want the classification, because they want in their hip pocket the ability to argue at some future point that some economic regulation of them is unconstitutional because it violates their free speech rights.

This is all a legal chess game. If you get a classification changed in one body of law, it can interrupt the interface of that body of law with other bodies of law.

Q: What are the obligations of common carriers under the FCC?

A: You have to serve upon reasonable request, you can't arbitrarily decide I'll serve this person and not another person. You have to provide your service without unreasonable discrimination. You have to do so at a just and reasonable price, and with adequate care and reliability. Those are the basic duties. And the FCC, on the federal level for interstate commerce, has the authority to enforce those. What that means, therefore, is there's a limit to how you can discriminate among people and that's where some of these companies would like to be able to discriminate.

Q: What can we expect to see from this repeal of net neutrality?

A: What it will enable [internet service providers] to do, is to discriminate in many ways that they can't today. You need to understand that broadband access to the internet is a two-way market. The people who are purchasing and using the access, let's say you and me at home, and then what you are trying to reach. Content providers, application providers, music streaming or whatever. By losing the classification of common carriage, the broadband providers will be able to discriminate on both ends of the market in a way that they haven't been permitted to.

An early problem that happened in 2008 could repeat itself. Comcast, for example, throttled Netflix's video streaming unless Netflix paid Comcast to give them the full speed. Why did they do that? Just to extract money from them. Now on the other hand, Comcast was not doing that to Hulu. Why? Because Comcast has an ownership interest in Hulu. So they were discriminating, one, as a way of getting revenue from Netflix, and two, to help favor Hulu over Netflix.

These kinds of tactics will happen in spades. Now the frequency of which they happen and what scale they happen, we don't know yet. But it can get to the point where it will be harder and harder for people to reach what they want to reach.

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