To understand the ideas behind Net Neutrality, it’s best to start with a clear understanding of ‘Common Carriers’. We’ll begin in 1776 in a stagecoach, move rapidly to a telegraph transmission in the 1850s, and then leap to the first US telecom legislation in the 1930s. From there, we’ll overview the implications of digital technologies since 1976. This background should help you understand how telecoms are using digital technologies to argue that in a Brave New World of Digitized Information Services, the long-honored principles of free access to information that underlie Net Neutrality no longer merit government protection.
Senate Hearings on Net Neutrality are coming to a CSPAN link near you this Tuesday, April 22nd. This background information should help you advocate for your interests, and follow the hearings as an informed citizen.
A Stagecoach Ride in 1776: Common Carriers for Hire on a Public Roadway, and the Legal Roots of Net Neutrality
Imagine a stagecoach traveling from Philadelphia to New York, circa 1776 -- four horses pull a carriage along a rutted dirt road. Inside the carriage, imagine an older woman with a very large hatbox, an ample girth, and a supply of her very best Colonial Ginger Cookies to snack on between carriage stops. Beside her a lean, pale man clutches three leather-covered books, a small leather satchel, and gazes out the window. Across from them, a harried mother soothes two small children, one of them gnawing at a Ginger Cookie kindly offered by the fellow passenger. Our travelers (having stowed their trunks, a basket of hens, two rugs, and assorted other possessions atop the carriage roof secured by leather straps) jolt and bump along the rutted, public dirt roads between two American cities.
Their tickets entitled them to be conveyed between the cities; trunks and hens included. Anyone with money could purchase a ticket, the coach being a 'Common Carrier for Hire' to anyone who did not possess horses and carriage for traveling such a vast and troublesome distance.
Our stagecoach passengers, jolted over rutted roads, probably had no idea that their actions -- traveling along a public road in a Common Carrier for Hire -- helped lay the legal, social, and political groundwork for the notion that some services (transportation, communication) and technologies (a stagecoach, a road system) offer unique public benefits that merit special protection under the law.
A telegraph transmission in the 1850s: Rights of Way and Public Access
The electrical pulses carried along telegraph wires running over prairies and farmlands were the harbingers of today’s Internet messages. Transmitted from one telegraph office to the next, like a series of ‘bounces’ between telegraph offices, the electric pulses of Morse Code shrunk distance, collapsed time, and solidified a sense of national identity in the last half of the 1800s.
The telegraph employee, translating customer messages into Morse code, sent electric pulses along telegraph wires strung in railroad right-of-way. The telegraph employees were the first to use code and produce electronic messages; precursors to today’s Internet server administrators. The Morse coded dot-dot-dash messages traveled along telegraph lines that were strung in (railroad) rights-of-way.
In a paradigm shift, right of way that originated for protecting public access to 'roads' was extended to cover 'wires'.
In the late 1800s, rights of way began to transport information, as well as passengers and goods.
Rather than hat boxes, caged hens, and Ginger Cookies, the right-of-way now carried i-n-f-o-r-m-a-t-i-o-n. This would have enormous implications as telephone became a widely utilized technology in the first part of the 20th century...
Telephone as a Common Carrier in the 1934 Telecommunications Act
The notion of a common roadway, to which anyone has access, goes back long before the Roman era, to caravan routes in Mesopotamia. The concept of a public road, traveled by ‘Common Carriers’ came to America from British Common Law. The idea of protecting the rights of the public to freely access a shared resource -- a roadway -- explains why the federal government developed legal protections for stagecoaches, roads, and -- beginning in the 1800s -- telegraph rights-of-way.
Electronic communications began to play a larger role in American life, first as telegraph and then (by the 1930s) as telephone. Protecting public access became a policy of the federal government in 1934, early in FDR’s administration.
As a ‘public good’, telecommunications (communications transported, or enabled, by electronic devices or pathways) was given specific, unique legal protections. It became clear that telecommunication networks required a great deal of cooperation; for this reason, phone companies were legally protected as ‘utilities’ -- a form of monopoly designed to ensure reliable supplies of a shared public resource [like water, power, or phone service].
The original (enabling) legislation was the 1934 Telecommunications Act. It had five major sections (called 'Articles'). The second of these, Article II, regulated telegraph and telephone through a new federal agency: the FCC.
Article II created the FCC (Federal Communications Commission) specifically to oversee and regulate Common Carriers. Although the legal term 'Common Carriers' includes buses, cruise ships, airplanes, the 1934 Telecommunications Act focused on regulating telephone companies. This system protected the telephone companies up through the 1990s -- but the phone companies were shifting from analog signals to digital signals. That shift opened up new revenue opportunities -- if AND ONLY IF the telecoms could find a way to escape FCC regulation.
Analog to Digital: Waves Morph into 00111010110... and Phone Is Now An Information Service...
Analog signals are wave forms -- they move across wires just so far and then... they lose energy. The waves dissipate into flat lines; the signal is lost. This technical problem (waves lose energy) was one reason that telephone companies began researching how information (sound, messages) might be encoded as digital signals (which are basically groups of 0s and 1s).
By the late 1990s, the move to digital was one among many important changes in American economy, education, society, and culture. Driving many of these changes was the development of the personal computer, digital sound files (MP3s), and digital video (DVD). Being able to plug that computer into your phone jack opened up a whole, new GoogleMappier world.
The phone companies intended to capitalize on this new world, by claiming that because the data traverses their 'toobz', they should be able to restrict access, charge per services, and control the network configuration, development, and pricing,
Unfortunately, there’s a catch: all digital files require software to encode them, send them, receive them, and translate them. In other words, the 'toobz' are not the critical core of the system; they are one essential component, but they are by no means the critical piece. Digital technologies require a new CODE layer, in addition to the wires and routers, in order to interpret all that digital data flowing around the Internet.
Law is codified; it's called 'legal code'.
But software code is an equally important, albeit different, sort of 'code'.
The ways in which software code is written control, restrict, enable, or deny access to information services.
Although the phone companies helped develop digital technologies, as well as software languages and codes, they are not the sole creators of the Internet. The Internet was built by a variety of organizations and the role of the telecom companies in its development should be placed in context with the investments and contributions of government, research, non-profits, and industry participants.
Whoops! Someone Please Tell Ted Stevens That The Toobz Don’t Function Without Software, and the Telecoms Don’t ‘Own’ the Internet!
The telephone companies -- newly renamed as 'telecoms' -- stand to make a great deal of money as Information Services, unregulated by the FCC.
They laid the groundwork in 2005, by winning a legal decision called “Brand X”. That legal decision argued that ‘digital’ is not the same as ‘telephone’, and therefore telecoms should no longer be regulated. They claimed they were no longer a utility; they were primed to profit in the free, unregulated, marketplace.
The FCC agreed in 2005 that someone, by virtue of digitization, the telecoms were no longer a monopoly, nor a utility. The FCC agree to remove the telecoms from Article II restrictions, and place them into Article I (unregulated, and free to charge as much as possible). It should be noted that in order to assuage guilt over removing the phone companies from regulatory constraints, the FCC offered a meaningless set of ‘feel-good’, legally unenforceable “Principles” designed to make it appear they still had the public interest in mind. (Use it as toilet paper, at your own risk.)
As ‘Information Services’ the telecoms can charge for specific types of access, or deny access to certain customers, certain file types, or certain networks.
But here’s what the courts, the FCC, and the Congress don’t seem to understand: the word d-i-g-i-t-a-l means ‘someone has to write software’ in order for all those 0s and 1s to mean anything. The telecoms can lay toobz around the planet 20 million times; if the software doesn't read the digitized data, it's all meaningless.
Nevertheless, the telecoms continue to claim that:
-- They aren't monopolies, so they should not be regulated.
-- They aren't utilities, so they should not be regulated.
-- They have 'invested' huge sums of money to 'lay pipe' and now need a return on their investment.
Consider the others investors in the Internet:
- Your local K-12 school district, at one level or another.
- Your local hospital, businesses, and medical offices.
- Anyone who has taken a community college or university course in any state-supported institution.
- Your local city government, cops, firefighters, and medics.
- You -- if you own a computer, and/or have ever taken a computer class.
- Churches and non-profits throughout the U.S.A.
- American taxpayers -- who supported early Internet research in the defense industry, as well as in research institutions.
- Researchers throughout the US, who use the Internet to seek, organize, publish, update, and analyze current data and other time-critical information.
- Software developers, including Open Source developers.
- State governments, federal agencies, and interagency commissions.
If all of us have invested, and if we care about the concept of public access, public rights of way, and public networks then why should we stand by as the telecoms come in to claim that simply because they 'laid the wire/pipe', they should receive the rights to: (1) charge whatever fees they think the market will bear, and (2) control access?
If the telecoms were the only investors in the Internet -- if Ted Stevens' 'toobz' were the critical element in the system -- then there might be a case for them to control the Net Neutrality discussion.
But we are all investors in the Internet, and there is far more to the Internet than a collection of 'toobz'. In addition, the economic benefits of public roads, public protections for Common Carriers, and public access goes back to the origins of these United States.
The telecoms have waited long, and patiently for their chance to control the Internet and it's fee structure. If you fail to communicate your interests to your legislators -- at both state and federal levels -- the telecoms and their lobbyists will prevail. To do nothing is to allow them to control the conversation.
The choice is yours.
The Senate Hearing is April 22nd.