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Problem: Consolidation of media companies has degraded
the usefulness of news services. Much of that consolidation
occurred after the passage of the Telecommunication Act of 1996.
By 2005 only 5 major media companies remained from the 80 companies
that were in operation in 1986. The Internet has offered a
solution to this by creating an alternative outlet for news services.
However, in 2005 the FCC reclassified DSL services as Information
Services instead of Telecommunications Services, and relaxed common
carrier requirements. This change allows telecommunications
companies to potentially control and regulate traffic on the web which
could reduce or eliminate access to these alternative news services.
Solution: Members of Congress have been drafting and debating
legislation that would require telecommunications companies to maintain
equal access to all content on the web. Passage of appropriate
legislation will ensure that the Internet remains a solution to the
degraded quality of news reporting that is a byproduct of excessive
media consolidation.
As media companies have consolidated, the reporting of news stories
has been compromised. In the past news services provided by media
vendors were the eyes and ears of the public, keeping them informed
about what is going on in society, government and business.
Investigative reporting uncovered corruption and played a critical role
in the checks and balances that protect and serve the public good.
This has resulted in a media that tends to ignore long-term issues and is afraid to challenge the statues quo.
As these media companies were consolidated through acquisitions and
mergers they were pressured to increase profitability. Managers
responded by redefining the news as a profit center rather than a
public service function that was not expected to post a profit.
This shift focused the news on sensational stories and reduced focus on
investigative journalism; especially on controversial or unpopular
subject matter. As these companies became more dependent on
advertising revenues from news functions they have become beholden to
their clients agendas and have backed away from reporting on stories
that might offend their advertising clients. This has resulted in
a media that tends to ignore long-term issues and is afraid to
challenge the statues quo.
The one solution to the proliferation of this cautious watered down
version of the news has been the development of the Internet. The
Internet presents an opportunity for anyone to access the media and
share information they have about what is going on in the world.
Most of the stories reported today in the mainstream press that
challenge the status quo were first published on the Internet.
Once public interest became focused on these issues the mainstream
media began to report on them.
Network Neutrality is the most important feature of the Internet and is
the key to maintaining the web as a brilliant example of free
enterprise that has helped fuel the world economy.
At the moment users and providers are all afforded equal access to
each other on the web. Anyone can become a journalist or operate
news service for just the cost of building and maintaining their
website. Any user can access these sites simply by typing in the
web address or looking for information with a search engine. This
equal access feature of the Internet is called Network
Neutrality. Network Neutrality is the most important feature of
the Internet and is the key to maintaining the web as a brilliant
example of free enterprise that has helped fuel the world economy.
Network Neutrality becomes compromised when the companies that own the
phone lines that data travels on determine which data is given priority
status.
Network Neutrality is a fairly sophisticated concept and different
experts come up with slightly different definitions of what it
means. In general, Network Neutrality denotes that all data
transferred on the web is given equal status and is transferred at the
same speed. This is somewhat of a gross generalization because
server software does do what is called traffic shaping – giving data
that is more popular priority in transfer speed. However, what
determines that speed is the flow of traffic – somewhat like
how in a democracy the people determine which candidate wins instead of
having the people who run elections determining who wins. Network
Neutrality becomes compromised when the companies that own the phone
lines that data travels on determine which data is given priority
status.
It is important to differentiate between transfer speed (the speed that data is transferred through the phone lines) and connection speed
(the speed that users and website operators connect to the
Internet). The users and website operators chose their connection
speed, and then all data that is transferred at that speed is given
equal priority – if Network Neutrality is maintained. As an
example if XYZ company pays for a connection that allows 3 megabits to
transfer each second, then all users can connect to that website at
close to 3 MB/sec. if their connection allows. Similarly, if user
A pays for a connection that allows 3 MB/sec. then all websites become
equally available at 3 MB/sec. as long as the website has a connection
that allows 3 MB/sec.
Even the development of the technologies that comprise the Internet was funded with taxpayer money.
The current existence of Network Neutrality acknowledges that the
Internet is a public resource. The Internet is comprised of all
the websites and all the users on the web, supported by technical
infrastructure that is owned by a vast collection of companies,
organizations and the public. The servers and routers that
represent the bulk of the capital investment of technology on the web
are owned by the companies that provide search engines and hosting
services. The cables and phone lines that distribute information
across the country and under oceans were built by telecommunications
companies with funds provided by their customers in the form of
surcharges and taxes, and bostered by government subsidies. The
land that these cables are installed on is either public land, or
private property that the telecommunications companies are able to
access under government regulations. Satellite and cellular
networks that contribute to the web use the public airwaves to
distribute their signals. Until 1990 almost the entire
infrastructure of the Internet was paid for with public funds.
Even the development of the technologies that comprise the Internet was
funded with taxpayer money. The software and hardware that makes
the Internet possible was first developed by the University of
California and the US military.
This would create a “two lane” system where
big companies that could afford the toll would be able to deliver their
content in the “fast lane” and smaller companies, non-profits, and
individuals that cannot afford this toll charge would find delivery of
their content relegated to the “slow lane”.
At every end telecommunications companies already charge for access
to their networks. Consumers pay for access to their service
providers who in turn pay communications companies for each phone line
they access – they pay more for higher speed connections. Hosting
services and search engines pay the communications companies for each
phone line they access – they pay more for higher speed
connections. With the FCC changes in the definition of DSL
services telecommunications companies could also levy what amounts to a
substantial toll charge to website operators for faster transfer of
their content over the phone lines. This would create a “two
lane” system where big companies that could afford the toll would be
able to deliver their content in the “fast lane” and smaller companies,
non-profits, and individuals that cannot afford this toll charge would
find delivery of their content relegated to the “slow lane”. This
would especially affect the delivery of media content as the “slow
lane” is likely to be insufficient for the delivery of high bandwidth
content such as video or audio.
Under this two lane scenario the consumer logging onto their
favorite news site may have to wait several minutes before the site
will open – if it can open at all before their browser times out.
For all practical purposes this limits the users’ access to sites owned
by big companies that can afford the toll. In addition to being
unfair to the consumer this would also give the telecommunications
companies an unfair advantage over other providers of media content
such as cable companies and Internet service providers. The
telecommunications companies already have an advantage as they do not
have to pay connection charges. To allow these companies to make
the Internet into a toll road that they control is a complete violation
of the spirit of the Internet as a sanctuary for free speech and free
enterprise.
Congress is aware of the issue of Network Neutrality. Two
bills have already been passed to curb the potential for abusive
business practices on the part of telecommunications companies.
These bills are mostly intended to prevent and punish companies from
using their technical and infrastructure advantages to eliminate
competition for services. What these bills do not do is to
clearly define the Internet as a public resource and prevent the
companies who maintain the phone lines from controlling the flow of
traffic over those lines. Specifically, telecommunications
companies are not barred from categorizing traffic and creating various
levels of service for different categories and imposing substantial up
charges for higher levels of service.
The most recent effort to ensure Network
Neutrality is an Amendment proposed by Oregon Senator Ron Wyden which
is still being debated in Congress.
In 2006 five bills were introduced and ultimately defeated that had
attempted to address Network Neutrality specifically. These bills
were defeated because they also contained measures that were either
unfair to a particular class of trade or might reduce
competitiveness. The most recent effort to ensure Network
Neutrality is an Amendment proposed by Oregon Senator Ron Wyden which
is still being debated in Congress. The text of Senator’s Wyden’s
bill appears in its’ entirety below. It is refreshing to see a
bill that is so direct and concise. Some Civil Libertarians may
have concerns about the language used in section 4 item B that refers
to the responsibility of Internet Service Providers to comply with
court ordered law enforcement requests and to eliminate illegal content
from their servers. In discussions with Senator’s Wyden’s office
they clarified that this section is intended to uphold measures
designed to eliminate child pornography. Senator Wyden’s office
also stated that he is committed to preserving civil liberties, noting
that the Senator was only one of 10 who voted against the US Patriot
Act.
Below two items have been reprinted. The first is a letter
from the Network Neutrality specialist from Google that explains more
about this legislation. The second is the full text of The
Internet Non-Discrimination Act of 2006, which was authored by Senator
Ron Wyden to address Network Neutrality.
The following was reprinted from a website maintained by Google:
November 8, 2005
The Honorable Joe Barton
Chairman
Committee on Energy and Commerce
U.S. House of Representatives
Washington, D.C. 20515
The Honorable John D. Dingell
Ranking Member
Committee on Energy and Commerce
U.S. House of Representatives
Washington, D.C. 20515
Dear Chairman Barton and Ranking Member Dingell,
I appreciate the inquiries by your staff about my availability to
appear before the Committee and to share Google’s views about draft
telecommunications legislation and the issues related to "network
neutrality." These are matters of great importance to the Internet and
Google welcomes the Committee’s hard work and attention. The hearing
unfortunately conflicts with another obligation, and I am sorry I will
not be able to attend. (Along with my colleague Robert Kahn, I am
honored to be receiving the Presidential Medal of Freedom on Wednesday
at the White House for our work in creating the Internet protocol
TCP/IP.)
Despite my inability to participate in the planned hearing in person, I
hope that you will accept some brief observations about this
legislation.
The remarkable social impact and economic success of the Internet is in
many ways directly attributable to the architectural characteristics
that were part of its design. The Internet was designed with no
gatekeepers over new content or services. The Internet is based on a
layered, end-to-end model that allows people at each level of the
network to innovate free of any central control. By placing
intelligence at the edges rather than control in the middle of the
network, the Internet has created a platform for innovation. This has
led to an explosion of offerings – from VOIP to 802.11x wi-fi to
blogging – that might never have evolved had central control of the
network been required by design.
My fear is that, as written, this bill would do great damage to the
Internet as we know it. Enshrining a rule that broadly permits network
operators to discriminate in favor of certain kinds of services and to
potentially interfere with others would place broadband operators in
control of online activity. Allowing broadband providers to segment
their IP offerings and reserve huge amounts of bandwidth for their own
services will not give consumers the broadband Internet our country and
economy need. Many people will have little or no choice among broadband
operators for the foreseeable future, implying that such operators will
have the power to exercise a great deal of control over any
applications placed on the network.
As we move to a broadband environment and eliminate century-old
non-discrimination requirements, a lightweight but enforceable
neutrality rule is needed to ensure that the Internet continues to
thrive. Telephone companies cannot tell consumers who they can call;
network operators should not dictate what people can do online.
I am confident that we can build a broadband system that allows users
to decide what websites they want to see and what applications they
want to use – and that also guarantees high quality service and network
security. That network model has and can continue to provide economic
benefits to innovators and consumers -- and to the broadband operators
who will reap the rewards for providing access to such a valued network.
We appreciate the efforts in your current draft to create at least a
starting point for net neutrality principles. Google looks forward to
working with you and your staff to draft a bill that will maintain the
revolutionary potential of the broadband Internet.
Thank you for your attention and for your efforts on these important issues.
Sincerely,
Vinton Cerf
Chief Internet Evangelist
Google Inc.
The following was reprinted from the website maintained by the library of Congress:
Internet Non-Discrimination Act of 2006 (Introduced in Senate)
S 2360 IS
109th CONGRESS
2d Session
S. 2360
To ensure and promote a free and open Internet for all Americans.
IN THE SENATE OF THE UNITED STATES
March 2, 2006
Mr. WYDEN introduced the following bill; which was read twice and
referred to the Committee on Commerce, Science, and Transportation
A BILL
To ensure and promote a free and open Internet for all Americans.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the `Internet Non-Discrimination Act of 2006'.
SEC. 2. FINDINGS.
Congress finds the following:
(1) Since passage of the Telecommunications Act of 1996, the
Internet has grown robustly. Today, Americans are changing how they
access the Internet, moving from dial-up to broadband for their home
connections. According to the Pew Internet and American Life Project,
72 percent of Americans use the Internet and 59 percent of Americans
with home Internet have a high-speed Internet connection.
(2) Americans use the Internet for many daily activities. Over 17
percent of Americans have sold something over the Internet. Everyday,
approximately 60,000,000 Americans use search engines to get access to
information. 80 percent of Americans have looked online for health care
information. In growing numbers, Americans are using the Internet to
place phone calls, watch their favorite televisions shows or movies,
and play games.
(3) The growth of the Internet and its success are due in large part
to the freedom that has always existed on the content and applications
layer of the Internet. Innovation has thrived on this layer, as anyone
with a good idea has the ability to access consumers. The continuation
of this freedom is essential for future innovation.
(4) Freedom on the content and applications layer has also led to
robust competition for retail goods for consumers. Consumers can shop
at thousands upon thousands of retailers from their home computers,
including small businesses located miles away in other towns, States,
and even countries.
(5) Such freedom is leading to the development of important new
entertainment offerings, on-demand video and movie purchases, Internet
Protocol television, and enhanced gaming options. The entertainment
options available in the future will only be limited by the bandwidth
that can be used and the innovation of people all over the world.
(6) Despite the growth of the Internet and increased access to the
Internet for Americans, there is very little choice in who provides
them high-speed Internet access. According to an April 2005 White Paper
by Harold Feld and Gregory Rose, et. al., entitled, `Connecting the
Public: The Truth About Municipal Broadband' only 2 percent of
Americans get high-speed Internet access from someone other than their
local phone company or cable provider. According to the Federal
Communications Commission, approximately 20 percent of Americans do not
have a high-speed Internet access provider that offers them service.
(7) As more and more Americans get high-speed access to the Internet
without having much choice of who their provider will be, it is
important that Congress protect the freedom on the Internet to ensure
its continued success.
SEC. 3. DEFINITIONS.
In this Act, the following definitions shall apply:
(1) APPLICATION OR SERVICE- The term `application or service' means any information or service--
(A) by which an end-user through software or a device engages in an exchange of data or information; and
(B) conveyed over communications.
(2) BITS- The term `bits' or `binary digits' means the smallest unit
of information in which form data is transported on the Internet as a
single digit number in base-2.
(3) COMMISSION- The term `Commission' means the Federal Communications Commission.
(4) COMMUNICATIONS- The term `communications'--
(A) means any voice, video, or data application or service, regardless of the facilities or technology used, that--
(i) is a transmission to subscribers by use of--
(I) the public rights-of-way;
(II) spectrum;
(III) numbering or addressing resources; or
(IV) other inputs licensed or managed by a unit of local government,
or a private entity working in concert with such unit of local
government, for the benefit of the public;
(ii) is offered to the public, or as to such classes of subscribers
as to be effectively available directly to the public, with or without
a fee; and
(iii) enables an end user, as part of such service, to transmit
content of their own design or choosing between or among points
specified by such user;
(B) includes interactive on-demand services, as such term is defined
in section 602(12) of the Communications Act of 1934 (47 U.S.C.
522(12)); and
(C) does not include cable service, as such term is defined in
section 602(6) of the Communications Act of 1934 (47 U.S.C. 522(6)).
(5) CONTENT- The term `content' means information--
(A) in the form of writing, signs, signals, pictures, and sounds of
all kinds, including stored information requested by an end user; and
(B) that is generated based on the input or request of such user.
(6) PERSON- The term `person' means any natural person, partnership,
firm, association, corporation, limited liability company, or other
legal entity.
(7) NETWORK OPERATOR-
(A) IN GENERAL- The term `network operator' means any person who
owns, operates, controls, or resells and controls any facility that
provides communications directly to a subscriber.
(B) OBLIGATIONS- Any obligation imposed on a network operator by the
provisions of this Act shall apply only to the extent that such network
operator is engaged in providing communications.
(8) SUBSCRIBER- The term `subscriber' means any person who--
(A) is an end user of an application or service provided through communications; and
(B) consumes or provides goods provided through such application or service.
(9) TRANSMISSION COMPONENT- The term `transmission component' means
the portion of communications which enables an end user to transmit
content of their own design and choosing between or among points
specified by such user.
SEC. 4. OBLIGATIONS OF NETWORK OPERATORS.
(a) In General- A network operator shall--
(1) not interfere with, block, degrade, alter, modify, impair, or
change any bits, content, application or service transmitted over the
network of such operator;
(2) not discriminate in favor of itself or any other person,
including any affiliate or company with which such operator has a
business relationship in--
(A) allocating bandwidth; and
(B) transmitting content or applications or services to or from a subscriber in the provision of a communications;
(3) not assess a charge to any application or service provider not
on the network of such operator for the delivery of traffic to any
subscriber to the network of such operator;
(4) offer communications such that a subscriber can access, and a
content provider can offer, unaffiliated content or applications or
services in the same manner that content of the network operator is
accessed and offered, without interference or surcharges;
(5) allow the attachment of any device, if such device is in
compliance with part 68 of title 47, Code of Federal Regulations,
without restricting any application or service that may be offered or
provided using such a device;
(6) treat all data traveling over or on communications in a non-discriminatory way;
(7) offer just, reasonable, and non-discriminatory rates, terms, and
conditions on the offering or provision of any service by another
person using the transmission component of communications;
(8) provide non-discriminatory access and service to each subscriber; and
(9) post and make available for public inspection, in electronic
form and in a manner that is transparent and easily understandable, all
rates, terms, and conditions for the provision of any communications.
(b) Preserved Authority of Network Operators- Notwithstanding the requirements described in subsection (a), a network operator--
(1) may--
(A) take reasonable and non-discriminatory measures to protect
subscribers from adware, spyware, malware, viruses, spam, pornography,
content deemed inappropriate for minors, or any other similarly
nefarious application or service that harms the Internet experience of
subscribers, if such subscribers--
(i) are informed of the application or service; and
(ii) are given the opportunity to refuse or disable any such preventative application or service;
(B) support an application or service intended to prevent adware,
spyware, malware, viruses, spam, pornography, content deemed
inappropriate for minors, or any other similarly nefarious application
or service that harms the Internet experience of subscribers, if such
subscribers--
(i) are informed of the application or service; and
(ii) are given the opportunity to refuse or disable any such preventative application or service; and
(C) take reasonable and non-discriminatory measures to protect the
security of the network of such operator, if such operator faces
serious and irreparable harm; and
(2) shall--
(A) give priority to an emergency communication;
(B) comply with any court-ordered law enforcement directive; and
(C) prevent any activity that is unlawful or illegal under any Federal, State, or local law.
SEC. 5. COMPLAINTS REGARDING VIOLATIONS.
(a) Complaint- Any aggrieved party may submit a written complaint to
the Commission seeking a ruling that a network operator has violated a
requirement described in section 4(a).
(b) Content of Complaint- In any complaint submitted under
subsection (a) an aggrieved party shall make a prima facie case that--
(1) a network operator violated a requirement of section 4(a);
(2) such violation was not a preserved authority described in subparagraph (A) or (B) of section 4(b)(1); and
(3) such violation is harmful to such party.
(c) 7-DAY ACCEPTANCE PERIOD- Not later than 7 days after the date of
the submission of a complaint under subsection (a), the Commission
shall issue a decision regarding its acceptance or denial of the prima
facie case made by an aggrieved party.
(d) Cease and Desist-
(1) IN GENERAL- If the Commission accepts the prima facie case of an
aggrieved party under subsection (c), a network operator shall be
required to cease and desist the action that is the underlying basis of
the complaint for the duration of the proceeding on such complaint,
until such time as the Commission may rule that a violation of a
requirement of section 4(a) has not occurred.
(2) AUTHORITY TO EXTEND CEASE AND DESIST ORDER- The Commission shall
have the authority to extend any cease and desist order to any
similarly situated person as the Commission determines necessary and
appropriate.
(e) Burden of Proof- If the Commission accepts the prima facie case
of an aggrieved party under subsection (c), a network operator shall
bear the burden of proving that--
(1) no violation of section 4(a) occurred; or
(2) such violation was a preserved authority described in section 4(b).
(f) Final Decision-
(1) 90-DAY PERIOD- Not later than 90 days after the date of the
submission of a complaint under subsection (a), the Commission shall
issue a final decision regarding the request for a ruling contained in
such complaint.
(2) FAILURE TO ISSUE DECISION- If the Commission fails to issue a
decision at the expiration of the 90-day period described in paragraph
(1), a violation of a requirement of section 4(a) shall be deemed to
have occurred.
(g) Rules of Construction-
(1) DELEGATION-
(A) IN GENERAL- Nothing in this section shall be construed--
(i) to prevent the Commission from delegating any authority granted
to it under this section to a relevant office or bureau pursuant to the
authority granted the Commission under section 5(c) of the
Communications Act of 1934 (47 U.S.C. 155(c)); or
(ii) to limit the Commission from adopting any appropriate procedures pursuant to any other provision of law.
(B) LIMITATION- The rule established under subparagraph (A) shall
only apply if at the expiration of the 90-day period described in
subsection (f)(1)--
(i) the Commission issues a final decision that is ripe for judicial review; or
(ii) a violation of a requirement of section 4(a) shall be deemed to have occurred under subsection (f)(2).
(2) PETITION FOR RECONSIDERATION-
(A) IN GENERAL- Nothing in this section shall be construed to affect
the ability of any eligible party to file a petition for
reconsideration under section 405 of the Communications Act of 1934 (47
U.S.C. 405).
(B) TIMING-
(i) 90-DAY PERIOD- Not later than 90 days after the date of the
submission of a petition for reconsideration under section 405 of the
Communications Act of 1934 (47 U.S.C. 405), the Commission shall issue
an order granting or denying such petition.
(ii) FAILURE TO ISSUE AN ORDER- If the Commission fails to issue a
decision at the expiration of the 90-day period described in clause
(i), the previous decision of the Commission shall be considered
affirmed and final for purposes of judicial review.
(3) JUDICIAL REVIEW- Notwithstanding section 402(b) of the
Communications Act of 1934 (47 U.S.C. 402(b)) and any other provision
of law, any appeal of a decision of the Commission under this section
shall be made to United States district court for the district in which
the principle place of business of the aggrieved party is located.
(4) INTERVENTION BY THIRD PARTIES- Nothing in this section shall be
construed to prevent any interested person from intervening in any
appeal of a decision of the Commission in accordance with section
402(e) of the Communications Act of 1934 (47 U.S.C. 402(e)).
SEC. 6. PENALTIES.
(a) In General- If the Commission issues a ruling under section 5
that a network operator is in violation of a requirement of section
4(a), such network operator shall be subject to the penalties
prescribed under section 501 of the Communications Act of 1934 (47
U.S.C. 501).
(b) Separate Violations- Each violation of a requirement of section
4(a) shall be treated as a separate incident for purposes of imposing
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