A little History about Net Neutrality

The Supreme Court

It started over 10 years ago within the Federal Communications Commission (FCC). Remember; back in 2002, there was no FaceBook, no YouTube or Social Media on the web! The Bush Administration at the time was being pressured by the cable and phone companies to change the rules on how the Internet was going to be managed. The last time the FCC changed their rules was in 1996 regarding telecommunication companies. At that time the Internet was only mentioned about 11 times in those documents, and setting policies on how the Internet would be governed was pretty much just an afterthought. These changes opened the doors for cable, and phone companies to put forward a whole business model and change how the Internet would function.


Now if you remember in the days of dial-up you accessed the Internet the old fashion way through your phone company. In terms of competition you had a lot of players in the market which really started to bring down prices. Because you had one-line going into your house everyone was governed by the common carrier rule, which let a large number of providers offer you services - companies like AOL, EarthLink, the local phone companies.


In the beginning of cable companies had a one-way broadcast model of operations, compared to how the phone companies had to operate under the common carrier rules. Cable Companies got to decide on what types of services you received, and what channels you could get within a range of bundled services. The cable companies wanted to take that model and move it to the Internet, and turn it into something that look like cable television - "WHICH IS WHAT THEY STILL WANT TO DO TODAY.!


The Cable companies went to the Bush Administration and the FCC in 1996, which at that time was headed by Michael Powel. The Bush Administration along with Michael Powel changed how broadband was classified. Instead of treating it as a telecommunication service which it is, a two-way communications service where you can upload/download and talk to each other like the phone company. They reclassified broadband and called it an "information service," which put it under a different classification, and a part of the law that applied to other services, like basic content, "not part of an infrastructure service or the pipes of the internet."


This lead to a new court case in 2005 called the "Brand X" case. This case went all the way to the Supreme Court. The Supreme Court ruled that the FCC had the right to make such changes, since they are the expert agency.


What the lawsuit was about is that the FCC ruled that Cable/Broadband Internet service providers no longer fell under the old “Common Carrier Rules,” and could do whatever wanted. This opened the flood gates for the Phone Companies to do the same, "get out from under the common carrier rules." Remember at that time, AT&T and Verizon along with other big phone companies started saying Google, Amazon and others are getting a free ride on our pipes. This is where the term Net Neutrality came into exists because these big telecommunication providers wanted to start changing the way the Internet worked and the public was not buying it....!


In 2005/2006 Net Neutrality became a war cry for the people. Social Media and the power of the Internet exploded and people started to hit back. The FCC at one time received over four million responses to stop the big companies from taking over the Internet. The FCC just could not believe the response they received online and in people protesting outside of their offices in Washington DC.


Now we come to the present day, and the Obama Administration. Tom Wheeler who was now the head of the FCC was getting hit from all sides to reclassify the Internet as a Telecommunication Service governed under and like the old common carrier rules. Which the Courts had ruled is the only way that the FCC could enforce Net Neutrality. The public pressure was building because the FCC was receiving millions of emails, letters, and phone calls. Finally the White House and President Obama took the side of Net Neutrality.


It took a little time, but with the President backing the FCC head to make the changes. He reversed the decision that was made by the Bush Administration. The FCC reclassified the Internet as a telecommunication service ruled under the common carrier guidelines.


Is this the end of it - NO WAY! Now the story of Net Neutrality gets even more interesting.


The Senate at the time changed its rules on the filibuster and on how judicial appointments below the Supreme Court could be appointed. This was a critical move by the Senate because at that time the United States District Court needed positions to be filled, and the Obama Administration could not appoint any new judges because Senators used the old filibuster rules to stop him. With this change in the Senate, Obama could finally fill the open slots on the United States District Court of Appeals (USDCA).  The USDCA court of appeals is the main court that rules on a federal agencies right to do things like enforce Net Neutrality. They are also known as the junior Supreme Court, because a lot of future judges come out of that court.


The decision by the USDCA court and the new judges appointed by Obama


The federal government has three layers of courts. On the top we have the Supreme Court which is most likely the next stop for Net Neutrality, and on the bottom we have the district courts. In the middle we have the appeals courts. When you hear the words; United States District Courts that can only mean the Federal Court System. The Federal Court System along with most State Court Systems has three layers; A State Supreme Court, Appeals Court, and on the bottom the District Courts. Those District Courts are where most trials happen.


When this ruling happened last week, and the new rules by the FCC where upheld. This is a very big thing, but certainly not the end. Next Stop: the Supreme Court, which is now short a judge since Antonin Scalia died.


That is why the upcoming election is significant for the future of Net Neutrality


Lance West


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