Neutrality 2.0: The Broadband Transition to Transparency
Justin S. Brown & Andrew W. Bagley
ARTICLE

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INTRODUCTION

[I]

ncreasingly for many Americans, broadband Internet access is a fundamental aspect to remain interconnected and participate in everyday life.^[1] Many citizens have shifted their own communication and mediated environments and practices to an online world to engage socially, economically, politically, and culturally. There are also a growing number of individuals who depend heavily on highspeed Internet service anywhere, anytime, whether through a tablet, desktop computer, SmartTV, video game console, or streaming media player via a local area network, Wi-Fi hotspot, 4G wireless, DSL, cable modem, or fiber-to-the-home. Arguably, one may suggest that the mass media landscape and its related industry structures, revenue, and distribution models are in a period of tremendous flux because of the Internet’s end-to-end design and ability to foster competition, innovation through digital distribution of overthe-top content, and services that typically retain or improve the quality of existing offerings at a fraction of the price.

While this outpouring of change allows for an expansion of voices in the marketplace, including user-generated content and social media, such a shift is predicated on viable high-speed Internet access being not only available to as many citizens as possible, but also first and last mile providers who provide quality connections without egregious network management practices that may block or drop specific services or content or even discriminate by favoring specific popular Internet sites over others with exclusive rates for higher speeds of service.

Although there have been very few blatant network management abuses reported, imagine for an instant Comcast or any other cable operator’s dilemma with competing video content through edge providers like Netflix or Hulu that detract viewers from traditional television viewing and advertising. Comcast has relied heavily throughout the years upon revenue from subscribers paying for cable television services and increased its physical distribution plan with fiber to further increase channel capacity to compete with direct broadcast satellite, offer more robust Internet connections, and enter the local telephone business.

But today, that bundle of services is facing stiff competition as consumers cut the cord and drop their landline service and multichannel video program distributor (“MVPD”) subscriptions. To help abate some of these concerns and compete with emergent over-the-top video services and new facilities-based entrants like Verizon’s FIOS, Comcast rebranded its cable TV service and launched XFINITY TV to provide both on-demand set-top box and online content.^[2] Arguably, it is not in Comcast’s best interests to cannibalize its current video subscription revenues and simply watch its broadband subscribers migrate to over-the-top services for competing video content.

As this past year’s debate has highlighted, there is a fear that fixed and mobile broadband Internet access providers may begin to peel back on their practices of openness at any given time without strong network neutrality provisions such as those recently put into place and those overturned in the past. A provider like Comcast is both horizontally and vertically integrated in the types of services and content it owns^[3] and may in effect use the first- and last-mile broadband leverage to help retain and even grow revenue flows.^[4] After all, in most markets, there are typically two facilities-based competitors for fixed broadband Internet access, especially when seeking a 25 Mbps connection.^[5] As a result, a broadband duopoly scenario leaves a tremendous amount of power and discretion with the two Internet access providers in how they manage their network. Perhaps even more profound is the occurrence of a company like Verizon that provides its own MVPD service as well as fixed and mobile high-speed Internet. While there are four large wireless broadband providers in the country that provide cellphone service, there is only one facilities-based provider, Verizon, that provides consumers with the potential bundle of both fixed and wireless broadband Internet access and MVPD service.

To help clarify these issues, in 2010 the Federal Communications Commission established the “Open Internet Rules” for broadband providers, calling for three network-management principles centered on antiblocking, non-discrimination, and transparency requirements.^[6] Recently, in Verizon v. FCC, the D.C. Circuit Court of Appeals vacated the antiblocking and non-discriminatory provisions but left the transparency requirements intact for both fixed and wireless broadband providers.^[7] Likewise, the FCC recently issued its 2015 Open Internet order that reiterated and enhanced the previously upheld transparency rules.^[8]

Moving forward, transparency requirements are therefore a central focus within the FCC’s approach to foster an open Internet and appear integral to the future broadband ecosystem. Even though broadband providers publish and distribute terms of service conditions to obtain user consent and avoid legal liability, only recently have they been required by law to disclose how they manage the network and report important consumer quality-of-service information like speed and latency. Through legal research and analysis, this Article reviews the shift toward transparency and disclosure as part of the solution to the network neutrality debate by asking the following research question: How do the FCC’s suggested transparency requirements, as set forth thus far in the Open Internet Rules, apply to broadband Internet access providers?

Part I of this Article discusses the regulation and judicial review behind the network neutrality debate. Part II reviews the FCC’s transition to transparency as detailed in the Open Internet Rules, focusing specifically on what fixed and mobile broadband providers may disclose to comply with the provisions and avoid potential sanctions. To further help illustrate how the transparency rules apply, Part III examines Verizon’s terms of service conditions to measure to how its fixed and mobile broadband Internet access services comply with the FCC’s suggested disclosure practices. Lastly, Part IV provides an appraisal of the FCC’s transparency efforts—which have thus far withstood legal challenge—as a solution in network neutrality policy and offers suggestions regarding further disclosure of meaningful information to consumers.

* Justin S. Brown is an assistant professor in the Zimmerman School of Advertising and Mass Communication, where he teaches courses in telecommunications and media law. He holds a Doctor of Philosophy in Mass Communications and a Master of Arts in Telecommunications Studies from the Pennsylvania State University and a Bachelor of Science in Journalism from the University of Oregon.

** Andrew Bagley is privacy counsel at CrowdStrike and serves as the director of operations for the Secure Domain Foundation. He is also an adjunct professor in the cybersecurity policy program at the University of Maryland University College. Mr. Bagley earned his Juris Doctor from the University of Miami. He holds a Master of Arts in Mass Communication Law, Bachelor of Science in Public Relations, and Bachelor of Arts in Political Science from the University of Florida. The views expressed herein reflect those of the author alone and do not represent the views of any employer or client.