Internet for All, or to all a Good Night- Happy Holidays!

It is difficult to choose a specific development to write about.  So I chose a topic that I did not know very much about: net neutrality, and I invite comments of all variations to develop a discussion on this topic. Additionally, to the right, I have posted a survey. The purpose of this  survey is to understand if people generally believe Internet access is a right.  My preliminary research has provided me with surprising responses; please answer the survey before reading the post.

A good starting point for the discussion is the Telecommunications Act of 1996, which articulates the United State’s Internet policy. 47 U.S.C. section 157 provides that the nation’s policy aims are to deploy “on a reasonable and timely basis . . .advanced telecommunications capability . . . to all Americans.”  The Act further announces the reasons for universal Internet access: 1) educational development, 2) informational access, 3) political discourse, 4) cultural development, 5) intellectual development, and 6) economic development. 47 U.S.C. §230(a).

Given the important policy drivers identified in the Act, the FCC declared, in a 2005 Policy Statement that, “the Commission has the jurisdiction necessary to ensure that providers of telecommunications for Internet access…are operated in a neutral manner.”[i]

This brings us to net neutrality, and what it means to the average Internet user.  Net neutrality is generally defined as a policy where all Internet service providers treat all sources of data equally. Seems noble enough. What’s the opposition?

To examine the opposition, a good illustration and source is the Comcast case.  In April 2010, the D.C. Circuit, decided Comcast v. FCC,[ii] which dealt with the FCC’s authority to regulate the business practices of a private communication company, and how that company manages its Internet traffic. More specifically, two of Comcast high-speed Internet subscribers realized that the company was interfering with their exchange of information over a peer-to-peer application. As a result, a complaint was filed with the FCC, and the FCC attempted to intervene, relying on the policy statement mentioned above.  With regard to the merits of the case, Comcast argues that management of its bandwidth was necessary to efficiently allocate what was essentially a finite resource. In the end, the case was decided on jurisdictional grounds, i.e., the FCC did not have jurisdiction to issue the underlying order against Comcast. 

The Comcast case was a significant loss for the FCC, and the case sheds light on one of the business reasons for an Internet provider’s rejection of net neutrality. The other major objection derives from businesses’ general distaste for any type of government regulation, and the desire of the industry to be subject only to market forces. This position was clearly articulated by attorneys for AT&T: “market forces will continue to serve consumers in the Internet marketplace better than command-and-control regulation ever could.” [iii]  It is important to note that the opposition is generally not to concept of net neutrality itself, but of the government’s intrusion into private businesses’ network management.  

But market forces tend to favor those with more capital, and net neutrality advocates fear that companies will pay to have data preferences. Now we come to December 21, 2010, and the FCC’s ruling on net neutrality.

The FCC explains in its press release: “broadband providers have taken actions that endanger the Internet’s openness by blocking or degrading disfavored content and applications without disclosing their practices to consumers . . . broadband providers may have financial interests in services that may compete with online content and services.”  This is a reiteration of the 2005 policy statement. However, included in the FCC’s report and order are three rules: 1) transparency; 2) no blocking; and 3) no unreasonable discrimination.  The full report can be found here: http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-10-201A1.pdf

As a result, providers must make public disclosures of their network management policies, must not block legal content, and must not discriminate against lawful data transmissions.  That said, reasonable network management would not be deemed “unreasonable discrimination.”  Additionally, the report specifically addresses the pay for priority problem mentioned above, and states that a priority agreement is unlikely to satisfy the “unreasonable discrimination” rule.

So where are we left?  Well, the FCC’s Comcast problem still needs to be addressed before these rules have any byte!

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[i] In re Appropriate Framework for Broadband Access to the Internet over Wireline Facilities.  FCC 05-151. (2005). 
Available at http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-05-151A1.pdf.  Accessed on December 22, 2010.

[ii] Comcast v. Federal Communications Commission, (2010).
Available at http://pacer.cadc.uscourts.gov/common/opinions/201004/08-1291-1238302.pdf. Accessed on December 22, 2010.

[iii] In re Broadband Industry Practices (Vuse and Free Press et al.).  Comments of AT&T on Free Press and Vuse Petitions.
Available at  http://fjallfoss.fcc.gov/ecfs/document/view?id=6519841106.  Accessed on December 22, 2010.