The History of Net Neutrality In 13 Years of Tales of the Sausage Factory (with a few additions). Part I

I keep being asked by people “Harold, can you please summarize the last 20 years of net neutrality for me while I stand on one foot?” Usually I answer: “do not do unto other packets what you find hateful for your favorite bitstream. The rest is commentary — located at 47 C.F.R. Part 8.” Alternatively, I send them to John Oliver’s 2017 piece on net neutrality. Or, if you want the longer story going back to the 1960s/70s, you can read this excellent piece by Tim Wu (who invented the term “net neutrality” in the first place).

 

But, as I’ve mentioned more than a few times in recent weeks, I’ve been doing this issue for a very, very long time. In fact, pretty much since the first time the question of how to classify cable modem service came up in 1998. So, in the spirit of “end of year montages,” I will now take you on a brief tour of the history of net neutrality at Tales of the Sausage Factory (with a few outside link additions) from my first post on the Brand X case back in 2004 to June 2016, when the D.C. Circuit affirmed the FCC’s 2015 Reclassification and Net Neutrality Order.

 

Although I suppose you could read the version I wrote about this in December 2015 to bring everyone up to date before the last court fight. Have I mentioned I’ve been doing this for a long, long time now and am repeating myself an awful lot? That’s why I spend more than 5000 words here and only get up to the beginning of 2009.

 

Prepare you favorite montage music and see more below . . .

As I say, I’ve been participating in what is now known as “net neutrality” and what used to be known as “open access” since 1998. This included the back and fourth between the Ninth Circuit in a now forgotten case called AT&T v. City of Portland. Wetmachine didn’t start until the end of 2003, so for Wetmachine-based flashbacks, we begin in 2004.

 

2004-05: Litigating Brand X.

Back in the 1990s, the FCC classified DSL service as “telecommunications service” subject to the then-existing rules on structural separation. So, under the GTE DSL Tariff and similar service tariffs adopted in 1998, the DSL transmission capacity provided by telephone companies was an interstate telecom service under Title II, which DSL resellers would buy wholesale and use to offer DSL service at retail. This was also pretty much same way we got “dial up.” The phone company leased me a phone line, I attached a funny device called a “modulatory/demodulator” (or “modem”) and called an “Internet service provider (ISP).” That ISP translated the blips and bloops of the modem into language computers understood, and then did things like send me email or get information from other computers, which it would translate into sounds that could go though the phone line, which would then get translated by the browser in my desktop into what we used to call The Internet.

 

Life was simple, then. You had telecommunications services, meaning the actual business of moving bits from one place to the other, and “enhanced services” (later, “information services”), meaning all the stuff that didn’t involve moving the bits around. A law originally adopted by the FCC in the 1970s (the “Computer I proceeding“) and modified a few other times in the 1980s and 1990s (Compute II, Computer III) kept the “telecommunications service” component and the “information service” component separate and easy to distinguish. Then along came “cable modem service,” which combined the telecommunications service (moving the bits at the instruction of the user) and the information service pieces (things like email, caching and other storage and retrieval of content) in one service.

 

This set of the whole fight on classification of broadband. As I record in my first “Net Neutrality Primer” from 2006 , the FCC under Republican Chairman Michael Powell classified cable modem as an “information service.” As the FCC Order described, this eliminated the mandatory rules governing Title II telecommunications services that governed things like phone lines and DSL lines. Importantly, however, the FCC did not relinquish authority and oversight over broadband (indeed, they called the accusation they were abandoning all oversight of broadband “fear mongering”). This is rather important for those who keep asking the question “why do we need net neutrality now when everything was fine before 2015?” As demonstrated with links by this little walk down memory lane, until December 14 2017, we always had rules to prevent the companies that owned the lines from blocking, degrading or otherwise interfering with the broadband traffic. The idea that we needed entirely separate rules to prevent this behavior didn’t even become a thing until after the Cable Modem Declaratory Ruling.

 

But even after the Cable Modem Declaratory Ruling, we still had Title II protections for a couple of years. An ISP called “Brand X” (and a number of us consumer groups along for the ride) sued the FCC in the Ninth Circuit. The Ninth Circuit reversed the FCC cable modem ruling, explicitly finding that all broadband in whatever form was a “telecommunications service,” leading me to prematurely rejoice that we could put this issue to bed. Ha! Sadly, I was wrong when I predicted the Supreme Court would not take cert and review the case, and wrong again when I predicted that we would win in the Supreme Court in Brand X based on my watching the oral argument.

 

The Internet Policy Statement Years, The COPE Act and the Real Beginning of the “Net Neutrality” Fight: 2005-09. 

 

So there we were, having lost Brand X, and with cable modem service now classified as an “information service.” But yes, we still  had actual rules preventing blocking and who knew what else, as it was all rather vague at the time. Powell used some sort of authority to stop the ISP Madison River from blocking voice-over-IP (VOIP). And the Supreme Court in Brand X recognized that Commission was considering what regulations to impose on cable modem via “ancillary authority.” Meanwhile, DSL remained subject to Title II regulation. (Mobile broadband did not really exist at this point, except for being able to get email on your Blackberry.)

 

The Fun Begins, And Pretty Much Every Argument We Are Ever Going to Have Gets Made, 2005-06.

 

As it happened, by the time the verdict came down in Brand X, Michael Powell had stepped down as Chair of the FCC. Bush appointed Kevin Martin to take his place, but there was a considerable delay (for a variety of reasons) until a third Republican was nominated and confirmed. Which left Kevin Martin with the problem of moving forward expeditiously to reclassify DSL as an information service with a Commission split evenly 2-2. So Martin did this whacky crazy wild thing people used to do back in the old days. He offered the two Ds, Michael Copps and Jonathan Adelstien, a compromise. In exchange for voting to reclassify DSL as Title I, Martin agreed to (a) include a Notice of Proposed Rulemaking to determine what consumer protection rules the Commission ought to adopt through “ancillary authority;” and (b) to adopt an official FCC policy statement which would declare that all broadband subscribers have the right to access any lawful content they want, the right to access any legal content, the right to run any application or service, the right to attach any device, and the right to “a competitive environment,” whatever the heck that was. Alternatively, Martin would wait until he got a third Republican and just reclassify DSL.

 

Copps and Adelstien, seeing an opportunity to salvage something useful out of the disaster that was Brand X, decided to accept the compromise. I know . . . Is that crazy or what? Man, we were new at the whole “highly partisan dysfunctional government” thing back then. You could still get stuff done, and people could actually compromise and concur with the other side without being total dickweeds.

 

The result was the September 2005 Wireline Framework Order and Internet Policy Statement. As I pointed out at the time, while signaling the death of the independent ISP market of DSL resellers, it could have been a lot worse. Most importantly for our current debate, despite what everyone who likes to think the history of this did not begin until 2015, we did indeed have rules governing what ISPs could and couldn’t do. Granted they were fairly ill-defined, and it wasn’t quite clear how this would work out, and no one really knew what they meant. But you can see what at least I thought they meant here and here. The one thing everyone agreed on, however, was that there was a one year phase in period until DSL reclassification. Which is why “net neutrality” a term that Tim Wu coined in 2002 to replace the idea of Title II common carriage, suddenly became the phrase that everyone started using instead of “Title II” or “common carriage.”

 

And I will pause here to emphasize that, yes, as far back as we have been debating this, even after the FCC definitively reclassified last-mile broadband access as a Title I information service, We never had the “no FCC rules/the Federal Trade Commission will take care of all consumer protection” Nirvana that Pai and his chorus keep repeating over and over again existed before 2015. It never existed, except among Pai and his fellow revisionists. (One of several reasons I expect this most recent Order to get struck down in court, as Tim Wu pointed out in this op ed.) Even if the rules were simply a statement of principles by the FCC, along with the additional statement that they would enforce them, the rules were still there, they existed, and they (mostly) worked to prevent truly egregious behavior by ISPs.

 

Anyhoo, during 2005- 06, the year DSL reclassification went into effect, a couple of things happened.

(a) Predictably, contra all the folks who favored deregulation and claimed that the incumbent local exchange carriers (ILECs) would continue to lease out facilities to competitors, the ILECs pretty much all stopped leasing out facilities to competitors, eliminating the thriving residential DSL resale market and dropping the number of competitors down to two (ILEC and incumbent cable) in most markets. (What is shocking is not that this keeps happening. It is not even shocking that supporters of deregulation keep saying that this time will be totally different. What is shocking is that everyone else in the flipping universe is surprised!! Srsly, am I the only person who can remember back more than 20 minutes? Well, that’s why I am writing my summary of the net neutrality fight again . . .)

 

(b) ISPs also demonstrated that they couldn’t be trusted to stop billing customers for no-longer applicable fees. Until the end of the phase in period in September 2006, DSL providers contributed to the Universal Service Fund (USF) finding base because they were — and I know this still comes as a shock to some people — Title II telecom services until reclassification went into effect. In good profit maximizer fashion, carriers initially planned to replace the DSL fee with a new “administrative fee.” Kevin Martin threatened to launch a “truth-in-billing” investigation if they did, so the DSL carriers dropped that plan. As I’ve noted previously, this is also fairly important when we talk about how the FCC did or didn’t exercise oversight over broadband prior to 2015. The FCC absolutely continued to maintain authority to police broadband practices, but the actual nature of this authority was rather hazy.

 

(c) But the real big deal was the introduction of the “tiered Internet” debate, which continues to dominate discussion to this day.

 

Ed Whitacre And The Quote Heard ‘Round The World.

 

What we would now recognize as the “net neutrality” debate really began on November 4, 2005 when then-head of SBC (which would absorb AT&T (subject to an enforceable net neutrality merger condition) and rename itself AT&T in 2006) Ed Whitacre made the following declaration.

“Now what they [Google, Microsoft, Vonage] 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? The Internet can’t be free in that sense, because we and the cable companies have made an investment and for a Google or Yahoo or Vonage or anybody to expect to use these pipes free is nuts.”

 

If you read the linked to article, you will notice that the basic arguments remain much the same. This is one of the reasons I find this topic so frustrating. In 2006, I spent a lot of time pushing back on these arguments. Here is the first time I wrote about the importance of net neutrality to political speech. Here is when I wrote about “the tiered Internet and virtual redlining.” Perhaps most centrally, here is my piece talking about what the FCC would later call the “virtuous cycle” that flows from prohibiting providers from monetizing scarce bandwidth by prohibiting prioritization (“fast lanes”). And here is my first piece summarizing all this and talking about the FCC’s general authority over broadband. And I’ll throw in this “Debunking Telco Disinformation” post, also from 2006, because I am still getting the same goddamn talking points from the telcos.

 

Have I mentioned I’ve been doing this for a very long time, and that there are not a lot of new arguments? As I started saying, I think back in 2010, you either believe the arguments or you don’t. It’s not like anyone is likely to say anything new.

 

The COPE Act of 2006 — Still Unacceptable 10 years Later.

 

2006 also saw the first legislative battle around net neutrality as part of a massive effort to amend the Communications Act the “Communications Opportunity Enhancement Act of 2006,” aka the COPE Act. I’ll skip most of what COPE was about and just focus on the net neutrality piece. After initially trying to kill net neutrality outright, opponents of net neutrality came up with an amendment that did the following:

1. Take the “no blocking any content, service or device that does not harm the network” rule and make it into law.
2. Require the FCC to address potential violations solely by adjudication.
3. Prohibit any rulemaking.
4. Eliminate any other FCC authority over broadband.

 

If this sounds ridiculously familiar, that is because opponents of net neutrality have offered this “compromise” legislation every single goddamn time that legislation comes up — with minor tweaks and variations. The current Blackburn Bill, pretty much follows the same pattern — with the added bonus of preempting the states.

 

Net neutrality supporters found this utterly unacceptable. Senator Ron Wyden, along with Former Senator Olympia Snowe (R-ME) (because net neutrality used to be a non-partisan issue) introduced a counter bill, the “Internet Freedom Preservation Act of 2006.” In addition to retaining rulemaking authority and not otherwise preempting FCC regulation of broadband (which everyone assumed the FCC could do via ancillary authority, see above discussion), the Internet Freedom Act of 2006 also:

1. Prohibited prioritization/”Fast Lanes” — paid or otherwise.
2. Mandate disclosure on network management practices, speed promised, and other relevant information.
3. Offer stand alone broadband service (at the time, cable cos would not sell broadband unless you subscribed to their cable service).

 

To emphasize the point, Internet fast lanes were never, ever acceptable to anyone who actually supported real net neutrality. Additionally, net neutrality supporters also recognized the danger of bundling and cross-subsidization. Bear that in mind in the months ahead as you hear people in the anti-net neutrality camp complain that net neutrality supporters are supposedly “moving the goal posts” or some other such nonsense. The battle lines on legislation have been utterly crystal clear since 2006. Those opposed to net neutrality are generally opposed to the FCC providing any consumer protection or promoting competition in broadband — which is why the proposal consistently offered by net neutrality opponents (“Member of Congress Written, Broadband Industry Approved”(tm)) Always contains provisions gutting FCC authority wrt broadband with the broadest, most sweeping language possible. It’s not about net neutrality. It’s about deregulating the broadband industry while pretending to “solve” the net neutrality “problem.” (The “problem” being that the broadband industry doesn’t actually like net neutrality — or any other rules.)

 

If you wish to see the lengthy history of pro-net neutrality and anti-net neutrality legislation introduced over the years, you can see this resource page the American Library Association put together.

 

Furthermore, to underscore the consistency that at least here at Tales of the Sausage Factory I have always viewed Title II as the appropriate “legislative solution,” here is a piece I wrote back in 2008 explaining why Congress ought to simply classify broadband as Title II and get rid of anything they don’t like rather than try to come up with new legislation to address net neutrality. Once again, it anticipates the FCC’s argument of 2015 that Congress classified mass market mobile services as Title II and gave the FCC broad forbearance power to avoid enforcing provisions deemed anachronistic and no longer serving the public interest. As I argued all the way back in 2008 before it was cool, and still maintain today, “Why not do the same thing here?”

 

Net Neutrality Becomes A Grassroots/”Netroots” Issue.

 

The 2006 legislative fight inaugurated net neutrality as a grassroots “outside the Beltway” fight. As always, the fact that people outside Washington DC do, in fact, care passionately about broadband policy issues keeps getting poo-pooed and dismissed by all the Very Serious People who know better. Further, by comparison with the popular attention on net neutrality today, the public reaction back in 2006 seems almost quaint. But at the time, it was an utter surprise to the policy world and the press that covers it and completely reshaped the advocacy playbook.

 

As I describe in this blog post (which I link to fairly frequently for my “citizens movements are citizen driven” speech), it was Free Press under Ben Scott that rewrote the playbook on net neutrality advocacy by ignoring the advice of established insiders and going “screw it, we’re taking this to the people!” This ended up crashing COPE when the effort to amend COPE by adding the Wyden “Internet Freedom Preservation Act of 2006” ended up in a tie. Then Chairman of the Committee Ted Stevens (R-AK) — who was determined to push through a major rewrite of the Communications Act as a legacy item — broke the tie and defeated the amendment. But the fact that net neutrality had sufficient support on the Committee to result in a tie persuaded the Republican leadership that they could not get it through in the remaining legislative session. Enraged, Ted Stevens took to the Senate floor to give his once-famous-now-nearly-forgotten “Series of Tubes” Speech. The resulting “series of tubes” meme helped propel net neutrality even further as an issue, culminating in what was in 2006 the ultimate “get” of political pop culture — a segment of its own on the Daily Show.

 

2007-08: Wireless Becomes A Thing, And Our Solution Finds A Problem Named “Comcast.”

 

After COPE crashed and the Dems retook Congress at the end of ’06, Congress effectively dropped out of the picture for awhile and the focus returned to the slow steady grind of building up net neutrality at the FCC — primarily through merger conditions. At first glance, the real big issue in 2007 was the wireless broadband suddenly became A Thing. I’ll try to fast forward through this, because it doesn’t bear a heck of a lot on the current fight. But it’s important both for historical completeness and to understand why we still see people sometimes argue about application of net neutrality to mobile as if it were somehow a radically different issue. It’s not just that we have a whole separate statute (47 U.S.C.332) which creates this “CMRS” v. “PMRS” dichotomy (which I’m not going to spend time talking about here). It’s because, historically, mobile wireless didn’t really come on the scene as a factor until after we already had the whole above history drawing the battle lines on wireless.

 

A bunch of fairly important things happened in wireless in 2007 that I will try to rush over real quick. First, Tim Wu wrote this incredibly important (and now forgotten) paper on how wireless providers were basically using their control over what devices could connect to their networks to block innovation, strangle the device market and generally manage things stupidly to block potential competition. For example, while forgotten now, wireless carriers used to force phone manufacturers to disable WiFi chips so you couldn’t roam off network. Wireless carriers blocked Skype and other VOIP products because they wanted you to use their minutes and stay on network. Wireless carriers blocked any app that possibly conflicted with any line of business they wanted to get into — like mobile payments. You can read the original Tim Wu paper “Wireless Carterfone” here.

 

Almost immediately following the publication of “Wireless Carterfone” came the Skype Petition. Skype (then still a stand alone company) petitioned the FCC to apply the Internet Policy Statement to mobile broadband and force mobile companies to let people use Skype on their mobile devices. The FCC declared mobile broadband an information service just like wireline, but did not automatically apply the Internet Policy Statement (even though the FCC reiterated that it would impose whatever consumer protection rules it found necessary under both ancillary authority and its Title III licensing authority). While then FCC Chairman Kevin Martin, being Republican, was no fan of regulation, he was willing to start using the FCC to nudge providers toward more wireless openness and warn ISPs against bad behavior such as blocking content. Whether you think that is an abandonment of the responsibility of government to create clear rules, an appropriate exercise of authority that serves public policy and avoids regulation, or an evil exercise of government power to beat up helpless little corporations depends on where you fall in the Progressive —> Libertarian scale. (Martin, as you might imagine, was somewhat right of center — ah, the old days when even staunch Republicans could unashamedly admit that sometimes government action, or even regulations, were occasionally necessary to protect consumers and serve the public interest. Fun times.)

 

So Martin did two things. First, he seriously considered adopting net neutrality rules as a license condition in the 700 MHz auction. This ultimately resulted in something known as the “C Block” license condition — a “net neutrality lite” (basically a requirement to publish a suitable air interface so any equipment manufacturer could make devices that could connect to the network using the C Block 22 MHz license). Rather than adopt a full on rule, this net neutrality lite condition was intended as a nudge to wireless carriers saying “hey, open up your networks, don’t make us adopt a rule requiring you to open your networks.” As it happens, the introduction of the iPhone in 2007 was in the process of totally revolutionizing the wireless universe and creating our current duopoly of iPhone/Apple v. Android/Google. Despite Verizon’s initial stubborn resistance to anything remotely resembling a net neutrality/open device condition, Verizon ultimately announced an open platform option for its next generation phones, won the C Block in the 700 MHz auction, and adopted Android as its “open platform.” How much of this would have happened without any sort of regulatory nudge, and whether we would have avoided a duopoly on mobile phones if the FCC had adopted a real open device rule in 2007, is something we can debate ’til the cows come home or until someone invents a device that lets us run alternate reality scenarios.

 

But Kevin Martin didn’t just focus on wireless. In 2007, the FCC launched a Notice of Inquiry on Broadband Practices.  The NOI on Broadband Practices, WC Docket No. 07-52, is another one of these really important documents that nobody remembers anymore — largely because it gets in the way of their preferred narrative that no one ever intended to have rules until Wheeler went all cray-cray in 2015. The 2007 Broadband Practices NOI, voted 5-0 by the full, Republican Majority Commission, confidently asserted that the FCC “has the ability to adopt and enforce the net neutrality principles it announced in the Internet Policy Statement.” The question of the NOI was whether formal rules were really necessary, and if so what the rules should be. Which is why, while few people remember it, 07-52 became one of the docket numbers associated with the first full blown FCC enforcement action over net neutrality.

 

The Solution Finds A Problem, Comcast/BitTorrent.

 

The next really big fight happened when Comcast started blocking subscribers using peer-2-peer (p2p) applications — most notably BitTorrent. This occasionally gets confusing because Bittorrent is a popular (although less so these days) p2p application for sharing large files (including lots of pirated movies and stuff), but there also was a Bittorrent.com private company (and, contra one snooty twitter critic who shall remain nameless, both the protocol and the company take a capital “B”). At one point, when the pressure got heavy, Comcast tried to cut a separate deal with Bittorrent.com to “solve” it’s political problems. This therefore occasionally gets held up by anti-net neutrality folks as being an example of “industry self-regulation,” despite the fact that by its own admission to the FCC in 2008, Comcast did not stop messing with p2p until ordered to stop by the FCC in August 2008.

 

I’ve talked about the Comcast/BitTorrent conflict at great length elsewhere so I will try to keep this brief. Comcast subscribers began to complain that they could not run p2p applications over Comcast, particularly BitTorrent, beginning in the spring of 2007. Comcast denied any allegations they were causing any problems. Then, in October 2007, tests by a Barber Shop Quartet loving techno-geek named Rob Topolski trying to use BitTorrent to share public domain music files (and subsequently confirmed by the Associated Press) revealed that Comcast was, indeed, injecting forged packets into the p2p traffic to disrupt the connections.  While most folks, including ultimately the FCC, focused on the anti-competitive motivation to block rival content, my own conclusion at the time (and, in my view, subsequently substantiated by Comcast’s written confession) was that this was proof that we needed net neutrality to make sure that providers actually invested in their networks rather than monetize scarcity and avoid capital expenditure on investment. As I explained at the time:

“Comcast’s basic problem here is it wants it both ways. It wants to advertise all you can eat connections of the highest speed — because that sells so much better than alternatives like metered pricing or explicit bandwidth caps. But it doesn’t want to deal with the consequences of the user behavior this sort of advertising generates. i.e., people using their Comcast connection all the time and expecting the advertised speed. Nor does Comcast want to deal with this the traditional way, by spending the money to build more capacity, then charging a higher price for the new “top speed.” Comcast, like any other profit-maximizing firm, would prefer to avoid expenditures and, if it must spend money to gain revenue, would prefer to minimize expenses and maximize revenue. Inserting reset packets to degrade the reliability of BitTorrent, and therefore discourage its use overall, is much cheaper than upgrading from existing hybrid-fiber-coax to fiber. So, as I predicted over a year and a half ago Comcast makes the logical choice and degrades traffic that eats bandwidth rather than pay to upgrade.

“So calling this a means of maintaining QoS is a tad Orwellian, although utterly rational and consistent. Usually when people argue about maintaining QoS, they mean actually guaranteeing a high level of service for people who want it. Here, Comcast actually means degrading service for particular applications of its own choosing (without telling users) so it can maintain an acceptable best efforts level of service for everyone else without expensive investment.”

 

I stress this because some net neutrality opponents (including Pai in the draft 2017 Order), rather than acknowledging this as confirmation of the “virtuous cycle” theory and proving the need to have strong net neutrality rules to promote investment and keep carriers from cheating on the capex to improve network performance, try to portray this as some sort of concession. “See, it wasn’t really conduct motivated by anti-competitive animus. Harold Feld says so. And since it wasn’t motivated by anti-competitive animus it is not a problem we need to regulate, since we only regulate to address market power. Q.E.D.” Well, I’m gratified so many net neutrality critics, including Ajit Pai, think I’m a better expert than the FCC’s own finding in the 2008 Comcast/BitTorrent Order. But y’all miss two rather important points. First, even if (as I suspect) the motivation was primarily to avoid spending money to upgrade systems (or admit how lousy they actually were), that does not preclude anti-competitive motives/market power abuse as part of the calculus and a delightful cherry on this Blocking Sundae.

 

But, even more importantly, it demonstrates that the absence of regulation does not automatically create more investment in broadband. To the contrary, every documented case we have demonstrates that, absent strong rules to require net neutrality, ISPs will prefer to avoid investment in their networks by managing them in less expensive ways with worse public policy outcomes — such as limiting bandwidth intensive applications to the more expensive tiers of service, or canceling the service of the top 1000 users every month, regardless of congestion or amount of use, to train people to stop using “too much” unlimited broadband. Further, as I explained in the same 2008 blog post, Comcast’s chosen “congestion management” had the further negative impacts of suppressing innovation and innovative edge solutions to problems since BitTorrent was a much more efficient means of sharing large files than simply trying to download them. That’s why BitTorrent was developed and why it became so popular (especially for illegal file sharing — but it was neither developed for or solely used for illegal file sharing). Allowing carriers to eliminate an application that is actually a technological improvement because it is popular and therefore incentivizes people to use it the network more is exactly the wrong public policy for reasons I explained then (and elsewhere) and won’t rehash here.

 

I’ll spare you my extremely lengthy fight litigating this in 2008. You can see highlights here, here, here, here, video of me at the FCC’s 2008 hearing on this at Stanford, and more legal arguments here, and here. Suffice it to say that the FCC sided with us on our complaint and request for declaratory ruling with an unusual 3-2 majority: Republican Chair Kevin Martin, and the two Democratic Commissioners Michael Copps and Jonathan Adelstien. Comcast complied with the FCC Order to stop blocking, and filed a report confirming they did not actually stop blocking until ordered to do so — so please don’t tell me once again how this demonstrates that the market solved everything because of the customer backlash. Customer backlash did squat. Comcast may not have been happy about it, but they didn’t actually stop until the FCC made stop.

 

And so 2008 came to a close, and so does Part I.

 

Whelp, here we are 5000 words in and we’re only up to the end of 2008. Hopefully we’ll get through the remaining history more quickly since, as I keep pointing out, most of the major arguments were already made in 2008 and we have been repeating ourselves ever since.

 

So, as 2008 ran down, we had Comcast appeal the FCC decision in the BitTorrent case to the D.C. Circuit, although I was pretty confident at that point we would win. After all, the Supreme Court itself had pointed to the FCC’s “ancillary jurisdiction” as giving the FCC the power to regulate broadband despite reclassifying it as Title I. In somewhat bigger news, Barak Obama actually included his commitment to net neutrality in his campaign platform, and was generally being lauded as the Tehcno-Nerd President and darling of Silicon Valley. When Obama won, he included folks like Susan Crawford and Kevin Werebach to his transition team. (Reporting to some guy named Tom Wheeler — see, life sometimes gives you all kinds of foreshadowing! We introduced Tom Wheeler as a potentially important character all the way back in Season 5!) Meanwhile, I was preparing to leave my old employer Media Access Project, while urging Congress to simply bite the bullet and classify broadband as a Title II service and use forbearance to get rid of whatever didn’t make sense.

 

So as 2008 ended and we entered into the Obama era, it looked like net neutrality, at least, would get wrapped up. The Obama Administration would adopt rules, the D.C. Circuit would tell Comcast to stop complaining about the little slap on the wrist it got, and we could all forget about this silly net neutrality issue and move on to more important issues — like broadband infrastructure and rural deployment.

 

Boy was I wrong.

Stay tuned . . . .