Project One: Constitutional Law Defense of Net Neutrality
THE FCC HAS THE MANDATE AND COMMON LAW AUTHORITY TO ENFORCE NET NEUTRALITY by MonaLisa Wallace, Esq. Rev. 01/28/18
I. COMMON LAW ALONE DEFINES COMMON CARRIERS AND THEREFORE THE INTERNET IS A PUBLIC UTILITY
Based on case law from 1901, the Federal Communications Commission (FCC) has the common law authority and the statutory mandate to regulate and enforce open Internet policies, regardless of the misclassification of providers as ‘information services.’ [Western Union Tel. Co. v. Call Publishing Co. 181 U.S. 92 (1901) U.S. Supreme Court Western Union Tel. Co. v. Call Publishing Co., 181 U.S. 92 (1901)]
Regardless of the unacceptable decision by the United States Court of Appeals for the District Circuit of Columbia, on January 14, 2014, Verizon v FCC (case No. 11-1355; Verizon v FCC et al), Internet providers are common carriers because the basis of US law is common law. Common law was established in Roman times, adopted and forwarded by the English, and is fundamentally incorporated into the law of the United States of America.
Common law implies ‘common carriage’ for the Internet even without codified public utility regulation. Common law allows us to make laws about well-known things such as ‘a chair,’ and common law asserts, ‘a chair is a chair,’ — hence the definition of a chair is an accepted or commonly defined thing. Without this basis for law, every detail would need argument and this would make interpretation impossible. Hence common law is much like common sense. Common law recognizes that a fact is not the same as an interpretation or opinion. A tree is a tree. Hence, laws are made regarding chopping down trees in parks, without the need to specifically classify a spruce as a tree. A government can codify a law saying chopping down trees in the park is illegal. A law stating it is illegal to cut down trees cannot be avoided by claiming a spruce is not a tree. However, a law can be revised to state: It is illegal to cut down trees in the park unless they are spruces. Using common law, whether the FCC classifies broadband providers as ‘information services’ or even ‘spruces’ they cannot change it from being a ‘common carrier’ by the common law definition. This is why the Verizon v. FCC case should be appealed.
The Internet has squarely fallen within the jurisdiction of the FCC since the Telecommunications Act of 1996 amending the Communications Act of 1934. Without FCC willingness to admit the truth – the Internet is a public utility and therefore Internet providers are ‘common carriers,’ because the Internet is a public communications network developed, paid for and given value by the taxpayers who own it – continued debates over the costs and benefits of net neutrality is spinning wheels and obfuscating the underlying regulatory dearth curtailing unlawful exploitation of public property.
The historically massive public response represented by over a million individual filings to the FCC demanding net neutrality in 2014, demanded a free and open Internet to serve the public good. Including but not limited to encouraging innovation and competition, net neutrality is fundamental to free speech and a free society. The question that has been proffered by the FCC to resolve the issue of whether or not the FCC has the fundamental authority and mandate to enforce net neutrality, is answered in its mandate and the definition of common carrier in the common law. The case law and common law demand the FCC fulfill its mandate to protect free and fair access of the carrier for the commons – the Internet.
Read the Court’s admonishment in Verizon vs. FCC that it was the FCC’s own refusal to label broadband providers as ‘common carriers’ that was the basis of their decision against recognizing FCC authority to enforce the full scope of the Open Internet Order of 2010:
“Given that the Commission has chosen to classify broadband providers in a manner that exempts them from treatment as common carriers, the Communications Act expressly prohibits the Commission from nonetheless regulating them as such. Because the Commission has failed to establish that the anti-discrimination and anti-blocking rules do not impose per se common carrier obligations, we vacate those portions of the Open Internet Order (page 4).”
If the FCC correctly recognizes the Internet as a public utility and broadband providers as ‘common carriers,’ the Court itself indicated its decision would only be a temporary derailment of full enforcement of the Open Internet Order.
If the FCC fails to redefine broadband providers as ‘common carriers’ this abrogation of duty would potentially enable the type of multi-tiered exploitation of the Internet that has the public in an uproar. It is by this resignation to lack of statutory support, that the Court in Verizon v FCC indirectly invites the FCC to address its failure to take the necessary regulatory steps to classify Internet providers as more than just information services but as gatekeepers to a public utility, thereby agreeing to labeling broadband Internet providers as ‘common carriers.’ This would theoretically avoid overstepping the scope of the statutory mandate described by Section 706.
While some of the public commentary addresses the heavy lobbying pressure to curtail common carriage classification, it is noteworthy that substantial potential profits for the broadband industry justify tremendous expenditures in lobbying efforts aimed at preventing accurate and truthful classification of the Internet as a common carrier. The Internet belongs to the public and broadband providers are by their very function acting as gatekeepers to public access to their public utility; this is labeled by common law as ‘common carriage.’
Because the common law, and not necessarily statute, defines who is and who is not a common carrier, the FCC itself lacks the authority to exempt broadband providers from the classification because a fact cannot be changed simply by being so deemed by an administrative rulemaking. A tree is a tree, whether or not there is a law declaring it a tree. Hence an appeal containing this reclassification would certainly win the FCC the power to enforce the public good, even should that enforcement fall outside the scope of Section 706.
What the Court failed to acknowledge in the January 14, 2014, Verizon v FCC decision, is that classification by the FCC or any governmental body of a public utility in any statutory format changes neither the reality of a resource being a public utility, nor the governmental authority and mandate to protect public interest in that resource.
There is a long established history of case law that supports this point of view. Indeed, the tenet that common law itself determines status as a common carrier has consistently been the law of the land. In 1901, the U.S. Supreme Court (Western Union Tel. Co. v. Call Publishing Co., 181 U.S. 92 (1901); page 181) declared that telegraph providers are common carriers despite the lack of any codified statute:
There is no body of federal common law, separate and distinct from the common law existing in the several states, in the sense that there is a body of statute law enacted by Congress separate and distinct from the body of statutes enacted by the several states. No one can doubt the inherent justice of the rules thus laid down. Common carriers, whether engaged in interstate commerce or in that wholly within the state, are performing a public service. They are endowed by the state with some of its sovereign powers, such as the right of eminent domain, and so endowed by reason of the public service they render. As a consequence of this, all individuals have equal rights both in respect to service and charges.
II. THE FCC HAS THE AUTHORITY AND MANDATE TO PROTECT NET NEUTRALITY BECAUSE THE INTERNET IS A PUBLIC UTILITY
The next logical query after assuming the premise that net neutrality is a public good, would be what does that have to do with the FCC? Section 706 plants Internet providers cleanly within the purvey of the FCC, the question of scope being the only controversial issue. Assumed in the faulty decision by the Verizon v FCC Court, lack of statutory support, perhaps underscored with the FCC’s own rulemaking determining broadband providers not ‘common carriers’ and instead declaring them to be ‘information services,’ allegedly means that the FCC does not have the authority to regulate to the full extent of the Open Internet. The FCC, however, does have the full authority to regulate the Internet and its common carriers because of the common law definition and as part of its initial 1934 mandate that states:
“Regulating interstate and foreign commerce in communication by wire and radio so as to make available, so far as possible, to all the people of the United States a rapid, efficient, nationwide, and worldwide wire and radio communication service with adequate facilities at reasonable charges, for the purpose of the national defense, and for the purpose of securing a more effective execution of this policy by centralizing authority theretofore granted by law to several agencies and by granting additional authority with respect to interstate and foreign commerce in wire and radio communication, there is hereby created a commission to be known as the ‘Federal Communications Commission’, which shall be constituted as hereinafter provided, and which shall execute and enforce the provisions of this Act.”
Because the Internet is the evolution of radio and wire, and merely an improvement in delivery of communications technology, it is disingenuous and broadband profiteering to attempt to deny that the Internet is a public utility. This is precisely the zeitgeist which led to the creation of the Open Internet Order of 2015, recognizing the importance of protecting the Public from unfair gatekeeping of their access to the Internet. That authority was clarified a century earlier, by the United States Supreme Court in 1901, when it determined that the court was in a position to determine as a matter of fact whether or not telegraph carriers were common carriers regardless of a lack of statute, using instead: common law. So although much of the legal discussion from 2014 which was supposed to rest on which is preferred, Title II or Section 706 as a source for the FCC authority to regulate to the full extent of the Open Internet Order of 2010, both are rendered simultaneously independently effective and redundant according to the common law definition of ‘common carrier.’ In other words, the FCC has the authority to regulate to the full extent of the Open Internet Order regardless of which, neither or both Section 706 and Title II.
The Internet is a public utility and therefore any business functioning as a gatekeeper to that public good should only do so according to regulatory laws, both statutory and common law, to prevent unjust profiteering and protect public access to a public resource. The real problem here is that the FCC is both recognizing its mandate to protect the open nature of the Internet, as part of its fundamental mission, yet failing to take the regulatory steps to fulfill this duty. Namely, the FCC must overcome the lobbying strategy invoking fear, uncertainty and doubt to exposing this new and vital technology to highly developed statutory public utility regulations, admittedly some of which are outdated and irrelevant but nevertheless are changeable, in the interest of protecting unfettered innovation.
TITLE II is not necessarily too much regulation for broadband, despite the assertions by lobbyists for those institutions benefiting most from a tiered internet, profiteering from blockading search results, charging tolls, slowing delivery speeds and creating other impediments to free speech for users. Title II does not have to be a perfect fit. Common carriers can fill out a form and request forbearance of inapplicable FCC regulations. If all the nuance and statutory fine-tuning adopted over eighty years of Title II does not fit perfectly, it is only a matter of refining the regulation just as common carrier regulations were refined to meet the needs of the Public from wagon trails to cellular phone service. If the FCC reclassifies broadband providers under Title II, the commission could use its authority to forbear under Section 10 (c) to selectively decide not to enforce sections of the Communications Act that do not apply to broadband. Under Section 10(c), any telecommunications carrier or class of telecommunications carriers may file a petition with the Commission asking that it exercise this forbearance authority.
United States common law as interpreted by the United States Supreme Court does not require a public utility to be called a public utility by any governmental body for it to actually be a public utility. Common carriage regulations have evolved since ancient Rome to modern communications law. In 1901, the Supreme Court heard the case of Western Union Telegraph Co. v. Call Publishing Co., 181 U.S. 92, 98 (1901). Agreeing with several state courts, the U.S. Supreme Court held that even without a statute, a telegraph company is a common carrier and thereby owes a duty of non-discrimination to the consumer because it is the common law and not a statute that defines a ‘common carrier.’ Thus the concept of common carriage does not depend on public utility regulation, and a user’s rights of service from a common carrier do not rely solely on statute. Statutory public service regulation augments and clarifies common law’s common carriage oversight, but cannot override or supplant it. Where the Court went wrong in the January 14, 2014, Verizon v FCC decision was to allow the refusal of the FCC to classify broadband providers as ‘common carriers’ under Title II to undermine the FCC authority to fulfill its mission to protect public interest in a free and open Internet. Where the Court went right was to point out the hypocrisy in regulating Internet providers as common carriers without being willing to admit that they are common carriers in their rulemaking.
Broadband providers, as part of their regular business, undertake for hire to transport information from place to place, offering its services to all such as may choose to employ them and pay the charges. Several states by statute declare that everyone who offers to the public to carry persons, property, or messages, excepting only telegraphic messages, is a common carrier. Broadband companies transport messages and information utilizing the Internet, a public resource invented and developed with US taxpayer money. This is not a judgment or opinion, it is a fact. The value of access to this public resource has already been recognized by Wall Street. The value of control by Internet gatekeepers can be computed as the difference between the actual physical assets, intellectual property and ability to pay dividends and the stock market price of certain technology stocks.
There was a day when an IPO like Google’s could have been priced down in the pennies according to turn of the century valuation strategies (e.g., hard assets, dividend payments, revenues). Everyone knows today that the value of the original Google public offering was that the public goes there to access the resource known as Internet – a very valuable intangible asset referred to sometimes as ‘eyeballs.’ Thus not only does the public’s investment in the Internet make it a bought and paid for public utility, but even their attention to it through protocols such as TCP/IP and other public developed universal conventions make the public an active component of what defines the Internet. As demonstrated by the revolution of blockchain and the evolution of currency known as ‘cryptocurrency,’ distributed database management and communications authentication technology, the Internet carries speech in the form of code and shared meaning. Moreover, the valuation of future innovative companies may be negatively impacted should ISP’s be allowed to have discriminatory practices.
Some might argue that it is a constitutional issue to regulate assets away from privately held companies. But for common carriers, common law implies that the public utility they access required a much more substantial public investment than the costs of any particular private business infrastructure investment. Even if the broadband Internet providers spent an estimated trillion dollars for their component infrastructure it remains small change to the amount the US taxpayer has paid since the development of DARPA and continuing today with a regular part of the federal research and development budget.
Likewise, if those broadband companies created their own intranet without connecting to the public Internet and without using (Cerf/Kahn’s) TCP/IP (created with the Defense Advanced Research Project (“DARPA”) taxpayer funds, then perhaps a more realistic valuation of their percentage of Internet infrastructure investment would come clear (i.e., it would have substantially less value). But so long as they rely on the public’s Internet to access the information of public demand, they undeniably fall within the definition of the common law ‘common carrier.’ Arguments and predictions about whether it is good or bad for broadband companies when the Internet is recognized as a public utility does not change the fact that it is a public utility. Arguments that because the Internet is not regulated as a public utility, it has grown and innovated with unfettered alacrity are irrelevant in determining the truth or falsity of a resource’s status as a public utility. A tree is still a tree. It if it a public utility it is a public utility (exempted from common carrier regulations or not). If a business is utilizing the Internet to transport information for sale to the public, then the Internet is undeniably a common law common carrier. This is probably why the Court left it open without prejudice for the FCC to correct the misclassification of broadband Internet in the January 2014 decision and why citizens are so outraged – there is intuitive public agreement that the Internet is owned by the taxpayer and that real taking here would be by allowing private profiteering from unequal access to the Internet.
The Internet grammatical capitalization was the traditional convention since its inception because it represents a singular network of connected networks, beginning originally as ARPANET then what is now known as the Internet. The Internet is a specific network of connected intranets. If broadband providers want to be excluded from regulations in the public interest related to how they connect to the public utility known as the Internet, they should make their own interconnected intranet and disconnect from the publicly owned Internet, as well as create their own version of the public protocols which make the Internet work (TCP/IP). Whether or not the FCC or broadband providers recognize that the Internet is a public utility, the public seems to have very strong perception that it is.
That kind of emotional outcry may not come from dry statutory interpretation, but from fundamental American entitlements we are raised to believe we have based on the US Constitution. The Supreme Court relied on this common understanding in 1901 when it established a common carrier need not be statutorily described to nonetheless be a common carrier. Determining both its regulatory authority and policy objectives related to net neutrality, the Federal Communications Commission has an opportunity to appeal, as highlighted January 14, 2014 by the DC Circuit Court of Appeals. Concomitantly, the FCC should immediately reclassify broadband as ‘telecommunications’ under Title II of the Communications Act, create a policy of forbearance under 10 (c), and regulate it according to its mission as a common carrier of the Internet, a public owned utility.
The effect of that reclassification would be to designate Internet service providers as ‘common carriers,’ making them subject to the full exercise of FCC regulatory authority. The solution does not require a new telecommunications statute, just frank admission that the Internet is a public utility because it was created by the public with the public’s funds to serve the public. No private business has the right to unregulated interference with the public’s access to its own resource.
THE FCC ALREADY HAS THE AUTHORITY TO REGULATE AND ENFORCE NET NEUTRALITY BY COMMON LAW AND THE VERIZON DECISION SHOULD BE APPEALED
Specifically, this response addresses the specific rulemaking questions related to the Section 706 blueprint for restoring the Open Internet rules offered by the D.C. Circuit in its decision in Verizon v. FCC, which relies on the FCC’s legal authority under Section 706 of the Telecommunications Act of 1996, by pointing out two important clarifications:
1) The authority to regulate a public utility need not be based on statute but on the factual truth: a resource being owned by the public is a common law determination.
2) The Court identifies the hypocrisy the FCC promulgates by attempting to regulate the Internet as a public utility in the public interest consistent with their original mandate, while simultaneously refusing to classify broadband providers as common carriers under Title II of the Communications Act. An analysis of the benefits of one approach over the other to ensure the Internet remains an open platform for innovation and expression, would be simply that Title II would codify the mandate to regulate the Internet as a public utility with providers that are ‘common carriers’ and Section 706 would inform the policy motivations in future rulemaking and forbearance decisions.
The FCC has the legal authority to appeal the Verizon v FCC decision citing case law since the 1901 Supreme Court decision in Western Union Tel. Co. v. Call Publishing Co. The FCC Open Internet Order of 2015 should have been enforced on the basis that its authority need not come from the FCC’s own admission that broadband providers are common carriers, nor Section 706, rather it is because: common law requires that a fact of being a common carrier is a fact regardless of it being stated in a particular statute or not. The observable facts that the FCC and the vocal public outcry understand that the Internet is a public resource and its providers ‘common carriers,’ is sufficient under common law to make the Internet the property of the Commons.
Responsibility to the public and its regulatory system begins when a private carrier connects to the Internet and accepts transmission traffic from it – the private carrier should not be allowed to prioritize sources of traffic, only to offer their customers products that contain user changeable traffic shaping. How private carriers select its direct customers, either end-users or content providers, can and should be regulated when what is logically inevitable from profiteering from these decisions can result in substantial public harm: suppression of free speech, the effective transfer of value and wealth from American entrepreneurs and inventors, the impediment of technological and social innovation, and the many listed concerns in the public outcry. The Internet is a common carrier and the public mandates the FCC to protect free access according to the common law.
Project Two: Cryptocurrency is Free Speech (in progress)
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CryptoLobby Net Neutrality White Paper by MonaLisa Wallace, Esq. is licensed under a Creative Commons Attribution-NoDerivatives 4.0 International License.
Based on a work at https://cryptolobby.com.
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