Net Neutrality

Summary

The principle of net neutrality is that Internet Service Providers (ISPs) should not be able to cut off or slow down service to sites, that no site should have to pay for higher download speeds, and that users should be allowed to attach any legal device to the internet. Proponents of enacting laws or rules to enforce these measures note that such measures may be necessary when an ISP may seek to harm the activity of a company or interest, such as shutting down access to a union website organizing against the ISP. Opponents state that there is no current need for laws and that any discussion of such laws only harms potential investments as investors are wary of future rules. They also note that government regulation of the internet could harm free speech.

In 2005, the Federal Communications Commission panel issued a policy statement in which it noted these principles of net neutrality. These principles were tested in 2008 when a complaint was brought to the FCC against Comcast claiming that it was degrading the service of BitTorrent. After initially discounting the claim, Comcast admitted to occasionally ending connections, but claimed that it did so only at peak usage times and only to ensure a quality connection for other users. The FCC found that Comcast had indeed degraded the service of BitTorrent and did so in off-peak hours and in manners not in line with FCC policy to ensure a quality service. The 2008 the FCC ruled that Comcast must disclose its internet regulatory devices and scheme within 30 days and give a plan to address these issues.

Comcast replied to the ruling by ending the practice and appealing. Comcast eventually won the appealing with the appeals court noting that the FCC only has authority to regulate the internet if Congress grants it to them and Congress had made no such action.

In December of 2010, the FCC proceeded to enact rules to regulate the internet that were consistent with net neutrality principles, even though Congress had made no move to grant them authority. In 2011, the House voted in favor of a resolution disapproving of the ruling. 

 

FCC Panel

The Federal Communications Commissions Panel if made up of 5 commissioners. Of those commissioners 3 are appointed by the party that holds the Presidency and 2 are appointed by the opposition party.

 

FCC Policy Statement

In August of 2005, the FCC adopted a policy statement on broadband internet access. The statement is shown below and does not establish official rules, but only adopts a policy. Four principles are established in the policy which state that consumers are entitled to:

  • access the lawful Internet content of their choice.
  • run applications and use services of their choice, subject to the needs of law enforcement.
  • connect their choice of legal devices that do not harm the network.
  • competition among network providers, application and service providers, and content provider 

POLICY STATEMENT
Adopted: August 5, 2005 Released: September 23, 2005
By the Commission:

I. INTRODUCTION

1. The availability of the Internet has had a profound impact on American life. This network of networks has fundamentally changed the way we communicate. It has increased the speed of communication, the range of communicating devices and the variety of platforms over which we can send and receive information.2 As Congress has noted, “[t]he rapidly developing array of Internet . . . services available to individual Americans represent an extraordinary advance in the availability of educational and informational resources to our citizens.” The Internet also represents “a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity.” In addition, the Internet plays an important role in the economy, as an engine for productivity growth and cost savings.

2. In section 230(b) of the Communications Act of 1934, as amended (Communications Act or Act), Congress describes its national Internet policy. Specifically, Congress states that it is the policy of the United States “to preserve the vibrant and competitive free market that presently exists for the Internet”and “to promote the continued development of the Internet.” In section 706(a) of the Act, Congress charges the Commission with “encourag[ing] the deployment on a reasonable and timely basis of advanced telecommunications capability” – broadband – “to all Americans.”

3. In this Policy Statement, the Commission offers guidance and insight into its approach to the Internet and broadband that is consistent with these Congressional directives.

II. DISCUSSION

4. The Communications Act charges the Commission with “regulating interstate and foreign commerce in communication by wire and radio.” The Communications Act regulates telecommunications carriers, as common carriers, under Title II.10 Information service providers, by contrast, are not subject to mandatory common-carrier regulation under Title II.” The Commission, however, “has jurisdiction to impose additional regulatory obligations under its Title I ancillary jurisdiction to regulate interstate and foreign communications.” As a result, the Commission has jurisdiction necessary to ensure that providers of telecommunications for Internet access or Internet Protocol-enabled (IP-enabled) services are operated in a neutral manner. Moreover, to ensure that broadband networks are widely deployed, open, affordable, and accessible to all consumers, the Commission adopts the following principles:

  • To encourage broadband deployment and preserve and promote the open and interconnected nature of the public Internet, consumers are entitled to access the lawful Internet content of their choice.
  • To encourage broadband deployment and preserve and promote the open and interconnected nature of the public Internet, consumers are entitled to run applications and use services of their choice, subject to the needs of law enforcement.
  • To encourage broadband deployment and preserve and promote the open and interconnected nature of the public Internet, consumers are entitled to connect their choice of legal devices that do not harm the network.
  • To encourage broadband deployment and preserve and promote the open and interconnected nature of the public Internet, consumers are entitled to competition among network providers, application and service providers, and content providers.

III. CONCLUSION

5. The Commission has a duty to preserve and promote the vibrant and open character of the Internet as the telecommunications marketplace enters the broadband age. To foster creation, adoption and use of Internet broadband content, applications, services and attachments, and to ensure consumers benefit from the innovation that comes from competition, the Commission will incorporate the above principles into its ongoing policymaking activities.

FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary

 

Comcast Lawsuit - Initial Complaint

In November of 2007, numerous electronic rights advocates began to complain to the FCC that Comcast was degrading the traffic to file sharing sites like BitTorrent and Gnutella. Two groups known as Public Knowledge and Free Press filed a complaint asking the FCC to investigate the matter. The accusation was supported by independent investigations by the Electronic Frontier Foundation and the AP which claimed that Comcast was using Sandvine to actively interfere with and block those sites by using forged TCP reset packets, which tell both ends of a connection that the other party has reset the connection.  Also in November of 2007, Free Press petitioned for a summary judgement.

Comcast responded to allegations of wrong-doing by stating that it uses techniques to manage traffic and occasionally delay connections in an effort to create an internet experience that is enjoyable to all users. Spokesman for the company stated that it's traffic control mechanisms conform to the FCC's definition of "reasonable network management" practices, which are allowed by the FCC. A Comcast spokesman and it's VP of operations and technical support Mitch Bowling said the following respectively.

Comcast does not block access to any Web sites or online applications, including peer-to-peer activity like BitTorrent. Our customers use the Internet for downloading and uploading files, watching movies and videos, streaming music, sharing digital photos, accessing numerous peer-to-peer sites, VOIP applications like Vonage, and thousands of other applications online. We have a responsibility to provide all of our customers with a good Internet experience and we use the latest technologies to manage our network so that they can continue to enjoy these applications.

We use the latest technologies to manage our network so that our customers continue to enjoy these applications. We do this because we feel it's our responsibility to provide all of our customers with a good Internet experience.

 

Investigation Announcement

In March of 2008, the FCC announced that it would be investigating Comcast and would be holding hearings.

STATEMENT OF COMMISSIONER MICHAEL J. COPPS IN RESPONSE TO COMCAST/BITTORRENT ANNOUNCEMENT

Today’s announcement confirms my belief that the FCC needs to play a proactive role in preserving the Internet as a vibrant place for democratic values, innovation and economic growth. If it had not been for the FCC’s attention to this issue earlier this year, we would not be having the conversation that we are having now among network operators, edge content providers, consumers and government about the best way to implement reasonable network management.

I look forward to learning more about this issue next month when the FCC holds a second hearing on Internet issues. I am confident that, through this process, the FCC can come up with clear rules of the road that will benefit American consumers and provide much-needed certainty to both network operators and Internet entrepreneurs.

 

Comcast Lawsuit - FCC Order

In August of 2008, the FCC issued a memorandum of opinion and order noting it's findings on the Free Press Complaint. The FCC Commission found that Comcast’s practices are not minimally intrusive, as the company claimed, but rather are invasive and have significant effects

The report notes that while Comcast initially stated that it did not interfere with peer-to-peer traffic, it admitted that it did so after tests by the AP and other groups. However, the company states that it only interferes with traffic during peak times and in peak neighborhoods so that this traffic does not interfere with overall internet traffic - in compliance with the spirit of the 2005 policy statement.

The FCC stated that amply evidence existed to show that Comcast interfered with traffic at all times and locations and without regard for internet quality. In fact, the document gives the reasoning that Comcast could be targeting BitTorrent because the site competes with Comcast's video on demand, but the document does not directly accuse Comcast of this motive.

The FCC orders that Comcast must:

  • within 30 days to disclose the details of their unreasonable network management practices
  • submit a compliance plan describing how it intends to stop these unreasonable management practices by the end of the year
  • disclose to both the Commission and the public the details of the network management practices that it intends to deploy following termination of its current practices.

Comcast responded to the ruling with disappointment. It claimed that the FCC did not have the authority to regulate internet traffic and that it expected the ruling to be overturned on appeal.

... the commission's order raises significant due process concerns and a variety of substantive legal questions. We are considering all our legal options and are disappointed that the commission rejected our attempts to settle this issue without further delays.

 

Comcast Lawsuit - Appeal

In January of 2010, the federal appeals court ruled in favor of Comcast. The court found that the FCC Commission failed to show that it had the authority to regulate the internet.

In this case we must decide whether the Federal Communications Commission has authority to regulate an Internet service provider’s network management practices. Acknowledging that it has no express statutory authority over such practices, the Commission relies on section 4(i) of the Communications Act of 1934, which authorizes the Commission to “perform any and all acts, make such rules and regulations, and issue such orders, not inconsistent with this chapter, as may be necessary in the execution of its functions.” 47 U.S.C. § 154(i). The Commission may exercise this “ancillary” authority only if it demonstrates that its action—here barring Comcast from interfering with its customers’ use of peer-to-peer networking applications—is “reasonably ancillary to the . . . effective performance of its statutorily mandated responsibilities.” Am. Library Ass’n v. FCC, 406 F.3d 689, 692 (D.C. Cir. 2005).

The Commission has failed to make that showing. It relies principally on several Congressional statements of policy, but under Supreme Court and D.C. Circuit case law statements of policy, by themselves, do not create “statutorily mandated responsibilities.” The Commission also relies on various provisions of the Communications Act that do create such responsibilities, but for a variety of substantive and procedural reasons those provisions cannot support its exercise of ancillary authority over Comcast’s network management practices. We therefore grant Comcast’s petition for review and vacate the challenged order.

 

Formal Adoption of Rules

In December of 2010, the FCC board voted 3-2 to put in place new rules which essentially adopted the principles established in the 2005 Internet Policy Statement. In a 200 page rule statement, the FCC notes the new rules as follows:

§ 8.1 Purpose.

The purpose of this Part is to preserve the Internet as an open platform enabling consumer choice, freedom of expression, end-user control, competition, and the freedom to innovate without permission.

§ 8.3 Transparency.

A person engaged in the provision of broadband Internet access service shall publicly disclose accurate information regarding the network management practices, performance, and commercial terms of its broadband Internet access services sufficient for consumers to make informed choices regarding use of such services and for content, application, service, and device providers to develop, market, and maintain Internet offerings.

§ 8.5 No Blocking.

A person engaged in the provision of fixed broadband Internet access service, insofar as such person is so engaged, shall not block lawful content, applications, services, or non-harmful devices, subject to reasonable network management.

A person engaged in the provision of mobile broadband Internet access service, insofar as such person is so engaged, shall not block consumers from accessing lawful websites, subject to reasonable network management; nor shall such person block applications that compete with the provider’s voice or video telephony services, subject to reasonable network management.

§ 8.7 No Unreasonable Discrimination.
A person engaged in the provision of fixed broadband Internet access service, insofar as such person is so engaged, shall not unreasonably discriminate in transmitting lawful network traffic over a consumer’s broadband Internet access service. Reasonable network management shall not constitute unreasonable discrimination.

§ 8.9 Other Laws and Considerations.

Nothing in this part supersedes any obligation or authorization a provider of broadband Internet access service may have to address the needs of emergency communications or law enforcement, public safety, or national security authorities, consistent with or as permitted by applicable law, or limits the provider’s ability to do so.

Nothing in this part prohibits reasonable efforts by a provider of broadband Internet access service to address copyright infringement or other unlawful activity.

§ 8.11 Definitions.

(a) Broadband Internet access service. A mass-market retail service by wire or radio that provides the capability to transmit data to and receive data from all or substantially all Internet endpoints, including any capabilities that are incidental to and enable the operation of the communications service, but excluding dial-up Internet access service. This term also encompasses any service that the Commission finds to be providing a functional equivalent of the service described in the previous sentence, or that is used to evade the protections set forth in this Part.

(b) Fixed broadband Internet access service. A broadband Internet access service that serves end users primarily at fixed endpoints using stationary equipment. Fixed broadband Internet access service includes fixed wireless services (including fixed unlicensed wireless services), and fixed satellite services.

(c) Mobile broadband Internet access service. A broadband Internet access service that serves end users primarily using mobile stations.

(d) Reasonable network management. A network management practice is reasonable if it is appropriate and tailored to achieving a legitimate network management purpose, taking into account the particular network architecture and technology of the broadband Internet access service.

 

Dissenting FCC Statements

After the FCC Commission voted to enact the rules, one of the dissenting chairmen spoke at a hearing and noted his objections to the ruling. He noted the following reasons as to why he did not support the rules:

My dissent is based on four primary concerns:

  1. Nothing is broken in the Internet access market that needs fixing;
  2. The FCC does not have the legal authority to issue these rules;
  3. The proposed rules are likely to cause irreparable harm; and
  4. Existing law and Internet governance structures provide ample consumer protection in the event a systemic market failure occurs.

 

House Response to Rules

In April of 2011, the House voted in favor of a resolution disapproving the FCC enactment of rules to regulate the internet.

 

 

Significant Votes 

In 2011, the House voted against allowing the FCC to regulate the internet. That is the only vote to be taken on the matter to date.

House Votes on Net Neutrality
YearRoll CallLegislation
2011250Disapproving of Net Neutrality Rules
 

Senate Votes on Net Neutrality
YearRoll CallLegislation

 

Additional Legislation

Each year, there are numerous bills introduced that are not voted on in the House or Senate. These bills may be sponsored by numerous people and a representative's co-sponsorship of that legislation gives insight into that person's viewpoints.

Senate Bills on Net Neutrality
SessionBill NumberCo-SponsorsBill Title
112S 741Internet Freedom, Broadband Promotion, and Consumer Protection Act of 2011
111S 18366Internet Freedom Act of 2009
110S 21511Internet Freedom Preservation Act
109S 291713Internet Freedom Preservation Act
109S 291713Internet Freedom Preservation Act
 

House Bills on Net Neutrality
SessionBill NumberCo-SponsorsBill Title
112H R 9673Internet Freedom Act

[1] Website: Federal Communications Commission Article: Policy Statement - August 5, 2005 Author: Federal Communications Commission Accessed on: 04/14/2011

[2] Website: Federal Communication Commission Article: Statement adopting rules Author: Federal Communication Commission Accessed on: 04/14/2011

[3] Website: ARS Technica Article: FCC to investigate Comcast BitTorrent blocking Author: Ryan Paul Accessed on: 04/14/2011

[4] Website: FCC Article: MEMORANDUM OPINION AND ORDER - Comcast Case Author: FCC Accessed on: 04/14/2011

[5] Website: ARS Technica Article: Comcast traffic blocking: even more apps, groupware clients affected Author: Eric Bangeman Accessed on: 04/14/2011

[6] Website: ARS Technica Article: Comcast shooting itself in the foot with traffic shaping "explanations" Author: Eric Bangeman Accessed on: 04/14/2011

[7] Website: FCC Article: Formal Complaint - Comcast Author: FCC Accessed on: 04/14/2011

[8] Website: CNET Article: FCC formally rules Comcast's throttling of BitTorrent was illegal Author: Declan McCullagh Accessed on: 04/14/2011

[9] Website: Wired.com Article: Comcast Ordered to Allow Free Flow of File Sharing Traffic Author: David Kravets Accessed on: 04/14/2011

[10] Website: FCC Article: Call for Declaratory Judgement Author: FCC Accessed on: 04/14/2011

[11] Website: US Court of Appeals Article: COMCAST CORPORATION, PETITIONER Author: District Court of Columbia Accessed on: 04/14/2011