A Point of View:
Net Neutrality Regulation in the United States
Release 4.21 October 2008
[Originally published in La Lettre de l'Autorité, a publication of Autorité de Régulation des Communications électroniques et des Postes, France, September 2008 edition]
by Barbara S. Esbin*
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The United States moved closer to "Net Neutrality" regulation this year when the Federal Communications Commission found that Comcast, a cable broadband Internet service provider, violated a set of Internet policy principles the FCC adopted in 2005 by limiting peer-to-peer (P2P) traffic. The ruling was the culmination of a ten-year effort that began as a call for wholesale "open access" to the cable platform for third-party Internet service providers. Requests for open access first emerged in 1998 when the FCC considered AT&T’s acquisition of cable operator TCI. The FCC rejected open access, but the issue quickly re-emerged in a subsequent proceeding to determine the appropriate regulatory classification of cable Internet service. Depending on how the FCC categorized cable Internet service, it would either be subject to telecommunications "common carrier" requirements, "cable service" requirements, or treated as a then-unregulated "information service."
In 2002, the FCC classified cable Internet service as an "information service." This meant that the telecommunications common carrier requirements -- that service be provided upon request, without unreasonable discrimination as to rates, terms and conditions of service -- would not apply to cable Internet services. The FCC’s decision was upheld by the U.S. Supreme Court in NCTA v. Brand X. Afterwards, advocates of open access re-directed their efforts away from advocating wholesale access for third-party ISPs, and towards rules aimed at consumer rights to a "neutral network" or "net neutrality."
In 2005 the FCC extended its deregulatory "information service" approach to wireline broadband Internet services, thus freeing telephone companies of traditional common carrier mandates for these services. The FCC’s decisions not to impose cable open access and to relieve telcos of common carrier obligations reflected a policy of fostering infrastructure deployment through market operations. Concurrently, the FCC released a "Policy Statement," declaring four "entitlements" that Internet service consumers should enjoy: (1) access to lawful content of their choice; (2) ability to run chosen applications and services; (3) ability to connect their choice of legal devices that do not harm the network; and (4) competition among network, application and content providers. The Policy Statement expressly stated that the FCC was not adopting rules and that the principles are subject to reasonable network management. The FCC subsequently stated that it would entertain complaints concerning violations of the principles, and in early 2007, the FCC opened an "Inquiry" into broadband industry practices, seeking information about network management and asking whether it should impose rules.
In late 2007, an advocacy group filed a Complaint alleging that Comcast had violated the FCC’s Policy Statement by "secretly degrading" BitTorrent traffic, thus interfering with the Internet rights of its subscribers, and that its practices did not constitute reasonable network management. Several months later, Comcast and BitTorrent agreed to work together to resolve network congestion issues through the use of protocol-agnostic network management. Yet on Aug. 20, 2008, the FCC released an Order purporting to rule on the Complaint, finding that Comcast had violated the Internet policy principles, and rejecting its defense that its practices were reasonable. The FCC ruled that Comcast’s network management practices: discriminated among Internet applications and protocols rather than treating all equally; effectively blocked Internet traffic; posed significant risks of anti-competitive abuse; were inconsistent with "an open and accessible Internet;" and that Comcast’s failure to disclose its practices compounded the harms. Alternative means of managing network congestion approved by the FCC include metered usage and throttling the connection speeds of excessive users.
This action was said to be an "adjudication," although traditional agency complaint rules were not followed. Comcast was given 30 days to disclose to the FCC "the precise contours" of its network management practices and describe what it will do instead to address network congestion. The effect of the Order is to establish a fifth "non-discrimination" Internet policy principle, to be implemented by the FCC through case-by-case adjudication of individual complaints rather than ex ante rules. Thus, 10 years later, and without explicit acknowledgment, the FCC has effectively abandoned its "hands off" approach and imposed a form of common carrier regulation on ISPs.
I have written elsewhere on legal and procedural flaws that may doom the Network Management Order. In summary: (1) the FCC has not been granted explicit authority to regulate the provision of broadband "information services;" (2) the "ancillary jurisdiction" on which the FCC relied was not reasonably related to its other statutorily mandated responsibilities; (3) having failed to adopt enforceable rules concerning broadband network management, the FCC could not lawfully subject Comcast to an "adjudication" concerning its practices; and (4) the Complaint filed against Comcast was defective in several respects and should have been dismissed.
The Network Management Order has been appealed by Comcast and several advocacy groups. Comcast challenges the basis on which the FCC found that it had violated federal policy in the absence of pre-existing legally enforceable rules. The advocacy groups appealed the FCC’s failure to order Comcast to immediately cease and desist interfering with P2P traffic. The appeals have been consolidated and will be heard by the D.C. Circuit Court of Appeals, a court that has shown little patience for the FCC’s unusual procedures and the FCC’s use of the doctrine of "ancillary jurisdiction" to expand its reach. Meanwhile, several network operators have announced bandwidth caps or plans to implement them. In addition, there are renewed calls both for the FCC to establish ex ante rules and for legislative action to grant the FCC express regulatory authority over broadband Internet service providers. In short, the legal and policy debate over net neutrality continues.