Preventing Network Discrimination

In the last decade, and coincident with the advent of broadband Internet technology, Internet regulation has been the subject of intense public debate over network neutrality, a legislative concept designed to provide Internet consumer/producers the right to open and non-discriminatory access to the network.  At the heart of the debate is the determination of whether the Internet constitutes a commons, and if so, whether the commons needs to be regulated to protect equal and anti-discriminatory access in what is now, a largely privatized network.  Of course, the Internet is not the first privatized network that engendered the commons debate.  Arguably, while the Internet is a unique infrastructure in many respects, it also has significant similarities to earlier networks, such as roads, railroads, the telegraph, telephone networks, radio networks, and television networks (Blondheim, 2004).  Indeed, many of these networks created positive network externalities that constituted public goods, and as such were considered commons subjected to common carriage law, a form of regulating the network infrastructure to protect the public good.  Therefore, examining the Internet network neutrality debate through the lens of common carriage, while not new, is useful insofar as it centers the discussion on the firm foundation of historical precedent, and captures the essence of what is at stake.  As such, this paper will cover a brief historical background of common carriage, describe the application of common carriage principles in the early Internet, compare and contrast proposed network neutrality legislation with common carriage principles, and conclude with a considered recommendation advocating for network neutrality legislation.

Common Carriage Background

            Common carriage is a legal principle that intends “to guarantee that no customer seeking service upon reasonable demand, willing and able to pay the established price, however set, would be denied lawful use of the service or would otherwise be discriminated against (Noam, 1994, p. 436).  The origins of common carriage law predate English law and whose precursors “go back to the Roman Empire and the legal obligations of shipowners, innkeepers and stable keepers” (Noam, 1994, p. 437).  English common law supports the notion of common carriage, beginning with the 1701 case, Lane versus Cotton, in which Justice Holt asserted “that one in the public employment can not refuse the duty incumbent upon him and that there would thus be causes of action for a postmaster refusing a letter, inn keeper refusing a guest or blacksmith refusing to shoe a horse” (Moglen, 2009, p. 1).  As such, common carriage’s core principal is that of anti-discrimination.

Common carriage was applied in the United States initially as common law, most notably to regulate the activity of the railroads, in absence of specific congressional legislation governing interstate commerce (“Western Union Telegraph Co. v. Call Pub. Co.,” 1901).  In addition, common carriage was applied to the first U.S. telecommunications infrastructure, the telegraph network, as a result of discriminatory behavior by Western Union (“Western Union Telegraph Co. v. Call Pub. Co.,” 1901).  Western Union’s discriminatory practices extended far beyond choosing winners and losers in the open market; the company went so far as to practice censorship by choosing political sides and only offering the perspectives of candidates whose policies favored Western Union (Rock, 2012; Wu, 2006a).  As a result of this and other corporate abuses of monopoly power over the telecommunications network, common carriage over telecommunications was codified into law with Title II of the 1934 Communications Act (Noam, 1994).  Since then, regulated telephone companies have been generally referred to as ‘common carriers’ and as such, have the obligation to provide non-discriminatory access to telephone service across the nation, and in exchange are not held liable for the content of traffic across the network.

The Internet and Common Carriage

            To say that the Internet was created as a result of the common carriage principle of non-discrimination is not an overstatement.  There was a time, prior to the 1980s, when consumers had to purchase their telephones from a Bell company and were not allowed to attach any other device to their phone line (Wu, 2006b).  However, a series of court decisions, including the Hush-A-Phone and Carterfone decisions, led to the FCC to enact “a strong non-discrimination rule for consumer network equipment, and even blocked the regional Bell operating companies from offering such equipment” (Wu, 2006b, p. 33).  The rule sparked a new wave of commercial innovations that saw the development of fax machines and modems, antecedents of modern networking.

Moreover, principles of non-discrimination were built into the very architecture of the Internet.  According to Lessig and Lemley (2001), the design of both the Internet and it’s predecessor ARPANET were based on the end-to-end design principle which organizes the placement of intelligence at the ends, while making the communications protocols simple. “One consequence of this design is a principle of non-discrimination among applications” (Lessig & Lemley, 2001, p. 927).  In essence, the network is a highly sophisticated set of dumb pipes, in the sense that any network or device can interconnect to the Internet by following the basic communication protocols.  Of course, the last thing that cable and DSL providers want to be are ‘dumb pipes’ and therefore, many use a variety of strategies, including discrimination, to avoid becoming a commodity (Knowledge@Wharton, 2009).  Indeed, there is little to prevent broadband providers from using their monopoly power over the network to introduce discriminatory behaviors that favor their commercial interests.

The Internet and Net Neutrality

            The advent of the Internet has ushered in new era of debate over non-discrimination on the network, partly because with the Telecommunications Act of 1996, the FCC designated cable and DSL as ‘information services’, rather than telecommunications (United States. Congress., 1996), and as such, they are not designated as common carriers.  Moreover, freed from constraint, telecommunications providers have used their network power to discriminate against perceived threats.  For example, Telus Corporation blocked subscriber access to a Union website critical of their labor practices (CBC News, 2005).  In addition, Madison River Communications, a DSL provider, blocked subscriber access to Vonage, a company with voice-over-IP technology that allows subscribers to place calls over the Internet, rather than paying for traditional phone service (Sandvig, 2007).  Finally, Comcast Corporation intentionally blocked subscriber access to Bit Torrent, a popular peer-to-peer file sharing protocol (Weiser, 2009).  Nor is the discrimination likely to end any time soon.

For example, former AT&T Chairman and CEO Whitacre (BusinessWeek, 2005) described the motivation for AT&T to discriminate against Internet upstarts like Google, Vonage, and MSN, noting:

Now what they would like to do is use my pipes free, but I ain’t going to let them do that because we have spent this capital and we have to have a return on it. So there’s going to have to be some mechanism for these people who use these pipes to pay for the portion they’re using. Why should they be allowed to use my pipes? (p. 1)

It is not surprising, that when freed from the constraint of common carrier classification, broadband providers use discriminatory practices to create and sustain competitive advantage; it is in their nature to do so.

However, the Federal Communications Commission (2010) recently passed a set of Open Internet rules to address broadband discriminatory practices.  The Open Internet rules force broadband providers to be transparent about their network management practices, prevent the blocking of legal content, applications, services, or devices, and prevent unreasonable network discrimination (Federal Communications Commission, 2010).  While the rules appear to provide a basis for the FCC to deal with discriminatory practices, there are several problems worth exploring.

First, the FCC treats fixed broadband and wireless broadband differently, providing far more leeway for cellular providers to discriminate, particularly against competing services.  Second, there remains considerable question as to whether the FCC has the legal authority to enforce such rules, particularly given the FCC’s original classification of broadband as an ‘information service’.  In fact, the DC Court of Appeals, ruling on the Comcast and BitTorrent FCC decision, recently “struck down a federal rule that required broadband providers to keep their networks open” (Puzzanghera & Guynn, 2010, p. 1).  Furthermore, Senate Republicans recently attempted to put a bill on the floor to overturn the FCC’s Open Internet rules, however the bill was narrowly rejected (Puzzanghera, 2011).   It appears likely that the FCC Open Internet rules will continue to be challenged in the legislature and the judiciary until the Internet is treated legally as a commons.

Of course, the critical issue with the Open Internet rules is the lack of legal recognition of the Internet as a commons.  Instead, the emphasis is on the Internet is as an important commercial platform for innovation and growth that must be protected with administrative rules rather than law.  While the Open Internet rules are an important step in anti-discrimination, they fall short of common carriage law insofar as they fail to treat the Internet as a legal commons that produces a public good.  Moreover, the Open Internet rules are not a legislative solution and remain dependent on the support of the FCC.  This author suggests that the anti-discrimination principles inherent in network neutrality proposals come largely from the common carriage principles of earlier legislation.  Moreover, the current Open Internet rules contain important anti-discrimination principles, but lack the force of law.  This author recognizes that despite the progress inherent in the FCC rules, net neutrality legislation is required to assure a lasting solution that recognizes the importance of the Internet to public good.


            From the telegraph to the Internet, each new communication technology creates a similar debate.  To what degree does the network constitute a public good and require regulation as a commons?  In the past, common carriage laws have been used to assure that corporations are unable to use their network ownership to discriminate.  However, the recent net neutrality rules enacted by the FCC, while providing an administrative basis to prevent the worst forms of discrimination, falls far short of common carriage legislation of the past, and continues to be challenged by lawmakers and the judiciary.  Therefore, this author suggests that the fight against network discrimination has only just begun, until such a time where anti-discrimination law for the Internet is a reality.





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Agency and Structure at Work in Municipal Wireless Broadband Adoption

Community owned and operated wireless broadband is one of the fronts in a widespread battle over the future what Benkler (2006) considers the ‘institutional ecology’ of the Internet, or all of the social, political, and economic constitutive choices faced by society as it grapples with the implications of the network.  In essence, the series of choices and decisions will determine the extent of agency and constraint, as described by Croteau, Hoynes, and Milan (2012), provided or imposed over various public and private stakeholders in institutional ecology of the network.  The future of municipal wireless broadband represents one such choice faced by society with important implications for the future of network access.

According to the FCC (2011), “broadband is a foundation
for economic growth, job creation, global competitiveness and a better way of life” (p. xi).  Yet, the FCC (2011) also notes that more than 100 million Americans lack broadband access at home, roughly a third of the country.  Benkler (2006) describes the problem as a last mile problem, meaning the last mile to the home is often the most expensive mile for infrastructure providers, particularly in rural areas, or urban areas that lack an economically attractive demographic for private industry.  Moreover, Benkler (2006) advocates the buildout of municipal wireless broadband because of the positive externalities that municipalities have to gain, such as increased economic growth, improved healthcare, or lower unemployment.  Indeed, Ferree (2011), investigated the impact of broadband adoption on employment rates and unemployment, finding that  “broadband adoption has a positive impact on a county’s employment growth rate and a negative impact on a county’s unemployment rate” (p. 34).  In addition, Kolko (2006) found significant evidence of a persistent digital divide, particularly in low-income urban areas.  Moreover, Kolko’s (2006) study suggested strong evidence that increased urban broadband use translated to users seeking healthcare information online.  Thus, municipal wireless broadband can be a particularly attractive solution for both urban and rural areas suffering from the digital divide, and can create positive externalities for municipalities seeking to improve their communities.  What stands in the way?

In The National Broadband Plan, the FCC (2011) acknowledges the challenge in municipal broadband wireless deployments as a policy issue, resolving to “clarify the congressional mandate allowing state and local entities to provide broadband in their communities and do so in ways that use public resources more effectively” (p. xii).   The congressional mandate referenced is none other than the Telecommunications Act of 1996, which states that “no State or local statute or regulation, or other State or local legal requirement, may prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service” (United States. Congress., 1996, Section 253).  Despite the clarity of the law, municipalities seeking to implement municipal broadband networks, have faced intense political and legal challenges from telecommunications industry actors.  The city of Abilene, Texas sought to implement a broadband network, however was prevented from doing so, given Southwestern Bell “persuaded the Texas legislature to pass a law that prohibited local governments from providing high-speed Internet access” (Benkler, 2006, p. 407).  After appeal, the Federal Appeals Court in Washington D.C. ruled that ‘any’ did not mean municipalities and the city was prevented from moving forward (Benkler, 2006).  This is but one example of the constraints faced by municipalities in seeking the derive the positive externalities of broadband by implementing their own network in the face of tension from corporate interests.

Of course, telecommunications corporations do not want to see the rise of municipal broadband because of the challenge to their oligopoly.  Therefore, there are intense efforts at lobbying underway.  Comcast Corporation, one of the largest broadband providers in the nation, is also one of the nations largest lobbying spenders, spending nearly $20M in 2011 alone (, 2012).  Moreover, Comcast sits on the Communications and Technology Board of the American Legislative Exchange Council, a conservative, free market bill mill that produces draft bills for federal and state legislators (, 2012).  ALEC’s position on municipal broadband favors the telecommunication’s industry arguing that municipal broadband networks could negatively affect free markets and “erode consumer choice by making markets less attractive to competition because of the government’s expanded role as a service provider (ALEC, 2012, p. 1).  However, Sadowski and De Pender (2009) found that the presence of municipal broadband actually increased competition.  It appears to this author that the arguments against municipal broadband by telecommunications providers are more oriented towards preserving their interests rather than serving the public interest, which is exactly what a publicly-owned corporation should do.  In fact, the reason the digital divide exists, is because telecommunications providers have serviced the segment of the population that can afford broadband, a behavior that is expected.  However, their desire to constrain the agency of municipalities that are not being served is both self-serving and an obstruction of social and economic progress.


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