In October 2021, Pres. Joe Biden nominated Gigi Sohn to fill the vacant seat on the Federal Communications Commission, thus giving Democrats control over the FCC. She is a former Democratic FCC staffer and a fellow at the Georgetown Law Institute for Technology Law and Policy. She a strong defender of net neutrality and supports regulating Big Tech media companies.
After facing a gurling Senate confirmation hearing in December, the vote on her appointment has been again delayed. The current delay is due to the stroke suffered by Sen. Ben Ray Luján (D-NM), a member of the Senate’s Subcommittee on Communications, Media, and Broadband; he is expected to make a full recovery.
The telecom and broadband industries are seeking to block Sohn’s nomination. “The industry serves to benefit from Gigi not moving forward and the FCC delaying its push for net neutrality and other government regulations,” admitted John Feehery, a lobbyist for AT&T, Sprint and other telecom companies.
Free Press reports that Comcast hired a major lobbying firm to block the appointment. Ars Technica notes that in the original lobbying disclosure form filed on January 5th, the firm listed it expected to work on “FCC nominations;” less than 12 hours later, it amended the form to focus on providing “telecommunications policy.”
One of the issues Republicans have raised is Sohn’s involvement with Locast, a streaming service that allowed people to watch over-the-air television, insisting it complied with FCC exclusivity rules. Sohn served on the board of Sports Fans Coalition, the non-profit that ran Locast.
Locast argued that it operated under a provision of 1976 Copyright Act that permits nonprofit “translator services” to rebroadcast local stations without receiving a copyright license from the broadcaster. It claimed it didn’t have to negotiate retransmission fees from broadcasters, unless it was turning a profit. Locast was sued by the major TV networks for allegedly violating copyright law and a federal judge ruled in favor of the networks. Sohn assisted Locast negotiating a settlement with the networks.
During her confirmation hearing, Sohn said that Locast allowed for low-income and underserved viewers to get access to television programs. A coalition of 18 conservative groups sent a letter to the Senate seeking to block her nomination due to her role in the Locast settlement.
What we now refer to as the internet began inauspiciously on October 29, 1969, when an experimental telecommunications data link was made between computers in a lab at the University of California in Los Angeles (UCLA) and another at the Stanford Research Institute (SRI). During this early period of development, online connectivity was facilitated through dial-up phones
In the early-1990s, Tim Berners-Lee introduced the key underlying technologies that created the world-wide-web. As he wrote, “Had the technology been proprietary, and in my total control, it would probably not have taken off. You can’t propose that something be a universal space and at the same time keep control of it.” At that time, internet connectivity was limited to 56-kbps [kilobits per second] so that an average song of 3.5 Mbps [Megabits per second] would need about a half-hour to download.
According to the Web Foundation, which Berners-Lee help found, the web was grounded in five core principles:
Decentralization: no permission is needed from a central authority to post anything on the web … and no “kill switch”! This also implies freedom from indiscriminate censorship and surveillance.
Non-discrimination: all connections to the internet are to be at the same level.
Bottom-up design: the web was developed in full view of everyone, encouraging maximum participation and experimentation.
Universality: anyone could publish anything on the web and all the computers involved have to speak the same languages to each other, no matter what different hardware people are using.
Consensus: it is based on universal standards to work so everyone had a say in creating the standards through a transparent, participatory process.
These features would come to define what is known as net neutrality.
The concept of “network neutrality” was coined by Timothy Wu in 2002, then a professor at the University of Virginia Law School; he currently is at Columbia Law School and serves on Biden’s National Economic Council. As he wrote, “This proposal introduces the principle of network neutrality or non-discrimination as a tentative answer to these questions [of broadband operators restricting networks].” He added:
As a general description, the proposal would strike a balance: it would forbid broadband operators, absent a showing of harm, from restricting what users do with their internet connection, while giving the operator general freedom to manage bandwidth consumption and other matters of local concern.
In a follow-up article published in 2003, Wu advanced an analysis that net neutrality developed from the basic “capitalist” principle of free and equal competition. He argued, “… the promotion of network neutrality: preserving a Darwinian competition among every conceivable use of the Internet so that the only the best survive.” Drilling deeper, he added, “The promotion of network neutrality is no different than the challenge of promoting fair evolutionary competition in any privately owned environment, whether a telephone network, operating system, or even a retail store.”
On October 27, 2020, the FCC met to address a number of goals of Pres. Donald Trump’s administration. The FCC is composed of five members and, under a Republic administration, three were Republicans and two Democrats. The commission’s chairman was Ajit Pai, formerly a Verizon’s Associate General Counsel.
Pai concluded his opening remarks with smug self-assurance. “Today,” he exclaimed, “it is patently obvious to all but the most devoted members of the net-neutrality cult that the case against the Restoring Internet Freedom Order was a sham. … Opponents of the Restoring Internet Freedom Order have lost their credibility. … The market for shameless demagoguery has dried up. The ruckus is over.”
The state of U.S. telecom has long been compromised by political football over Title I vs. Title II classifications. The 1934 Communications Act divides communications into two categories: Title I involve what is designated as an enhanced “information services” and subject to fewer regulations; and Title II services are designated as basic or “common carrier” service and are subject to more regulation. Basic services were designated to be “pure communications” services that are “virtually transparent in terms of [their] interaction with customer supplied information.”
In 2015, the then-Democratic controlled FCC classified internet service providers (ISPs) offered as “broadband services” – i.e., high-speed internet access that is faster than the traditional dial-up access – by companies like AT&T and Comcast as Title II common carriers. However, in 2020, the Republican-controlled FCC reversed the earlier rule and reclassified internet services as a Title I information service subject to less federal regulation.
This clash over net neutrality and the classification of broadband as a Title II services sets the stage for the political struggle over Gigi Sohn’s nomination.
An additional factor was added to the nomination process in late January when California’s Ninth Circuit Court of Appeals ruled in favor of the California Internet Consumer Protection and Net Neutrality Act (SB 822). The act restricts internet service providers from some activities, including paid prioritization that would enable companies like Facebook, Google and Netflix to optimize data transfer rates. The law also prohibits so-called “zero-rating” practices that some believe exploit consumers by allowing free access to some services but not others.
SB 822 had been challenged by the leading telecom industry trade groups, including US Telecom (the broadband association), NCTA (Internet & Television Association), CTIA (wireless association) and ACA Connects (cable association).
The court found that because the FCC determined – in a prior ruling during the Trump administration – that it no longer had authority over broadband consumer protection, California’s broadband consumer protection law could go into effect. And what works in California may well spread throughout the country.