Network neutrality in the United States
Encyclopedia
Network neutrality in the United States is a hotly debated issue subject to regulatory and judicial contention among network users and access providers. As a de facto matter, there is a degree of network neutrality
in the United States
, meaning that telecommunication
s companies rarely offer different rates to broadband and dial-up Internet consumers based on Internet-based content or service type. However, there are no clear legal restrictions against these practices. Broadband providers often block common service ports, such as port 25 (SMTP) or port 80 (HTTP), preventing consumers (and botnets) from hosting web and email servers unless they upgrade to a "business" account. In recent years, advocates of network neutrality have sought to restrict such changes.
In 2005 and 2006, corporations supporting both sides of the issue spent large amounts of money lobbying Congress. In 2006, representatives from several major U.S. corporations and the federal government publicly addressed U.S. Internet services in terms of the nature of free market
forces, the public interest, the physical and software infrastructure of the Internet, and new high-bandwidth technologies.
Five failed attempts have been made to pass bills in Congress
containing some network neutrality provisions. Each of these bills sought to prohibit Internet services providers from using various variable pricing
models based upon the user's Quality of Service
level. Described as tiered service
in the industry and as price discrimination
by some economists, typical provisions in the bill state "[Broadband service providers may] only prioritize...based on the type of content, applications, or services and the level of service purchased by the user, without charge for such prioritization". Other provisions common to the net neutrality discussion were included in the proposed legislative works.
The debate in the U.S. in part extends internationally, due to the global nature of many Internet services. (See the main article on net neutrality for details). In practice, net neutrality is also influenced by state level politics.
Services such as telegrams and the phone network (officially, the public switched telephone network
or PSTN) are considered common carrier
s under U.S. law, which means that they are considered akin to public utilities and overseen by the Federal Communications Commission
(FCC) in order to ensure fair pricing and access; such networks are expressly forbidden to give preferential treatment.
In the 1990s, some US politicians expressed concern over protecting the growing new electronic resource.
Cable modem
Internet access has always been categorized under U.S. law as an information service, and not a telecommunications service, and thus has not been subject to common carrier regulations, as upheld in National Cable & Telecommunications Association v. Brand X Internet Services
. High-speed data links, which make up the Internet's core, are also not regulated by common carrier law. On the other hand, Internet access across the phone network, including DSL, was for a long time categorized as a telecommunications service, and subject to common carrier regulations. However, on August 5, 2005, the FCC reclassified DSL services as information services rather than telecommunications services, and replaced common carrier requirements on them with a set of four less-restrictive net neutrality principles. These principles, however, are not FCC rules, and therefore not enforceable requirements. Actually implementing the principles requires either official FCC rule-making or federal legislation. As the principles do not impose specific regulations, they sparked a debate over whether or not Internet service provider
s should also be allowed to discriminate between different service providers by offering higher network priority to higher-paying companies and customers, allowing some services to operate faster or more predictably and ultimately become more acceptable to end users.
Some broadband providers have proposed to start charging content providers in return for higher levels of service, creating what is known as a tiered Internet
. Packets originating from providers who pay the additional fees would in some fashion be given better than "neutral" handling, while those content providers who do not pay the higher fees would get a lesser level of service. Given this ability to accelerate the handling of selected packets, the service providers would perhaps give Quality of Service guarantees to given senders or recipients.
The legal debate about net neutrality regulations echoes previous arguments about the public interest requirements of the telecommunications industry, and whether companies involved in broadcasting are best viewed as community trustees, with obligations to society and consumers, or marketplace participants with obligations only to their shareholders.
FCC rules do not clearly prevent telecommunications companies from charging fees to certain content providers in exchange for preferential treatment. On the other hand, neutrality advocates Tim Wu
and Lawrence Lessig
have argued that the FCC does have regulatory power over the matter, following from the must-carry
precedent set in the Supreme Court case Turner I.
, then Chief Executive Officer
of SBC Communications, stated "there's going to have to be some mechanism for these [Internet upstarts] who use these pipes to pay for the portion they're using", and that "The Internet can't be free in that sense, because we and the cable companies have made an investment," sparking a furious debate. SBC spokesman Michael Balmoris said that Whitacre was misinterpreted and his comments only referred to new tiered services.
On June 28, 2006, the Senate Commerce Committee approved the Telecommunications and Opportunities Reform Act, which entails guidelines combating discrimination. The act detailed broadband consumer rights without nondiscriminatory language urged by net neutrality advocates, thought to be a compromise between the ever-battling net neutrality campaigns. It also instituted parameters regarding the actions taken by broadcasters and various media players. However, this bill failed to pass both houses.
In a June 2007 report, the United States Federal Trade Commission
(FTC) urged restraint with respect to the new regulations proposed by network neutrality advocates, noting the "broadband industry is a relatively young and evolving one," and given no "significant market failure or demonstrated consumer harm from conduct by broadband providers," such regulations "may well have adverse effects on consumer welfare, despite the good intentions of their proponents." In turn, the FTC conclusions have been questioned in Congress, as in September 2007, when Sen. Byron Dorgan
, D-N.D., chairman of the Senate interstate commerce, trade and tourism subcommittee, told FTC Chairwoman Deborah Platt Majoras
that he feared new services as groundbreaking as Google
could not get started in a system with price discrimination.
In October 2007, Comcast
was found to be blocking or severely delaying BitTorrent uploads on their network using a technique which involved creating 'reset' packets (TCP RST) that appeared to come from the other party. On March 27, 2008, Comcast
and BitTorrent reached an agreement to work together on network traffic. Comcast will adopt a protocol-neutral stance "as soon as the end of [2008]", and explore ways to "more effectively manage traffic on its network at peak times." Comcast reached a proposed settlement in December 2009 of 16 million, admitting no wrongdoing and amounting to no more than 16 dollars per share.
On February 25, 2008, Kevin Martin
, the Chairman of the Federal Communications Commission, said that he is "ready, willing and able," to prevent broadband
Internet service providers from irrationally interfering with their subscribers' Internet access.
In August 2008, the FCC ruled that Comcast broke the law when it throttled
the bandwidth available to certain customers for video files in order to make sure that other customers had adequate bandwidth. The FCC ordered Comcast to disclose the details of its network management practices within 30 days, submit a compliance plan for ending the offending practices by the end of the year, and disclose to the public the details of intended future practices. The FCC’s order was the first Internet network management decision of its kind.
January 2008, Time Warner Cable first introduced their intention to move to a "consumption based billing" plan to continue profitable net neutrality. In 2009, information was released that packages would be 10GB, 20GB, 40GB, and 60GB, and featured overage charges of $1 per GB, capped at $75, and Time Warner launched the pricing system in several markets including Rochester, NY, Beaumont, TX and Austin, TX. There was a public outcry. Early April, they announced that they would offer larger packages. Public dissatisfaction did not recede. On April 16, they were forced to abandon the plan altogether.
On June 6, 2010, the United States Court of Appeal for the District of Columbia in Comcast Corp. v. FCC
ruled that the FCC lacks the authority to force Internet service providers to keep their networks open to all forms of content.
In May 2010, after reports indicated the FCC would drop their effort to enforce net neutrality, they announced they would continue their fight. It was believed the FCC would not be able to enforce net neutrality after a Federal court's overthrow of the agency's Order against Comcast.
On December 21, 2010, the FCC approved new rules
banning cable television
and telephone
service providers from preventing access to competitors or certain web sites such as Netflix
. The rules would not keep ISPs from charging more for faster access. Republicans
in Congress
plan to reverse the rules through legislation.
The FCC's net neutrality R&O
put forward the following rules to govern non-discrimination online:
§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. (Note: The rule does not require public disclosure of competitively sensitive information or information that would compromise network security or undermine the efficacy of subject to reasonable network management practices.)
§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.
, Consumer Federation of America
, AARP
, American Library Association
, Gun Owners of America
, Public Knowledge
, the Media Access Project
, the Christian Coalition, and TechNet
. Tim Berners-Lee
(the inventor of the World Wide Web) has also spoken out in favor of net neutrality.
The free-market advocacy organizations FreedomWorks
Foundation, National Black Chamber of Commerce, the Competitive Enterprise Institute, and the Progress and Freedom Foundation; and high-tech trade groups such as the National Association of Manufacturers, oppose network neutrality
.
Journalist Andy Kessler has argued this point, stating that the threat of eminent domain
against the telcos, instead of new legislation, is the best approach.
Some U.S. technology trade associations have remained noncommittal on the issue. The U.S. financial sector has similarly remained neutral.
Network neutrality regulations are also opposed by free market advocacy groups, such as Americans for Prosperity
and their website No Internet Takeover, as well as minority advocacy groups such as the National Black Chamber of Commerce
and LULAC. The Communications Workers of America
, the largest union representing installers and maintainers of telecommunications infrastructure, opposes the regulations. One commonly-made argument against net neutrality is that it would primarily benefit industry lobbyists and not consumers.
Many network neutrality opponents also oppose telecom common carrier regulations and regulated transparency to customers. Conversely, not all network neutrality proponents emphasize transparency to customers, and most proponents do not phrase network neutrality in terms of existing telecom carrier restrictions even when the desired state is equivalent. In many cases, a return to treating internet service links as telecommunication rather than information carrier services would re-invoke sufficient restrictions on discrimination and refusal to carry to satisfy most definitions of network neutrality. It would also return the carriers to the conditions of limited liability that were in part breached by the 2005 FCC decision that DSL services are information services not telecom services, and thus not subject to common carrier rules.
A number of these opponents have created a website called Hands Off The Internet to explain their arguments against net neutrality. Principal financial support for the website comes from AT&T, and members include technology firms such as Alcatel
, 3M
and pro-market advocacy group Citizens Against Government Waste
.
Corporate astroturfing
is alleged. For example, one print ad seems to frame the Hands Off the Internet message in pro-consumer terms. "Net neutrality means consumers will be stuck paying more for their Internet access to cover the big online companies' share," the ad claims.
, Google
, and Microsoft
. However, the fuller concept of "Network neutrality" was developed mainly by regulators and legal academics, most prominently law professors Tim Wu
and Lawrence Lessig
and Federal Communications Commission
Chairman Michael Powell
most often while speaking at the Annual Digital Broadband Migration conference or writing within the pages of the Journal of Telecommunications and High Technology Law, both of the University of Colorado School of Law
. However, the ideas underlying network neutrality have a long pedigree in telecommunications practice and regulation.
Proposals for network neutrality laws are generally opposed by the cable television
and telephone industries, and some network engineers
and free-market scholars from the conservative
to libertarian
, including Christopher Yoo
and Adam Thierer. Opponents argue that (1) Network neutrality regulations severely limit the Internet's usefulness; (2) network neutrality regulations threaten to set a precedent for even more intrusive regulation of the Internet; (3) imposing such regulation will chill investment in competitive networks (e.g., wireless broadband) and deny network providers the ability to differentiate their services; and (4) that network neutrality regulations confuse the unregulated Internet with the highly regulated telecom lines that it has shared with voice and cable customers for most of its history.
By late 2005, network neutrality regulations were included in several Congress
ional draft bills, as a part of ongoing proposals to reform the Telecommunications Act of 1996
. They would generally require Internet providers to allow consumers access to any application, content, or service. However, important exceptions allow providers to discriminate for security purposes, or to offer specialized services like "broadband video" service. These regulations generally forbid ISPs from offering different service plans to their customers.
In April 2006 a large coalition of public interest, consumer rights and free speech advocacy groups and thousands of bloggers -- such as Free Press
, People for the Ethical Treatment of Animals
, American Library Association
, Christian Coalition of America, Consumers Union
, Common Cause
and MoveOn.org -- launched the SavetheInternet.com Coalition, a broad-based initiative working to "ensure that Congress passes no telecommunications legislation without meaningful and enforceable network neutrality protections." Within two months of its establishment, over 1,000,000 signatures were delivered to Congress in favor of a network neutrality policies. By the close of 2006, SavetheInternet.com had collected more than 1.5 million signatures effectively stalling legislation in Congress that didn't write Net Neutrality protections into law.
The two proposed versions of "neutrality" legislation to date would prohibit: (1) the "tiering" of broadband through sale of voice- or video-oriented Quality of Service packages; and (2) content- or service-sensitive blocking or censorship on the part of broadband carriers. These bills have been sponsored by Representatives Markey, Sensenbrenner, et al., and Senators Snowe, Dorgan, and Wyden.
The following legislative proposals have been introduced in Congress to address the network neutrality question:
Congressman Adam Schiff
(D-California), one of the Democrats who voted for the Sensenbrenner-Conyers bill, said: "I think the bill is a blunt instrument, and yet I think it does send a message that it's important to attain jurisdiction for the Justice Department and for antitrust
issues."
Although no new bills regulating net neutrality have been introduced in the 111th Congress, Senator Dorgan (D) was reportedly preparing a bill in December 2008. In any case, net neutrality bills are referred to the Senate Committee on Commerce, Science, and Transportation. The Committee Chair, Rockefellar (D) has expressed caution about introducing unnecessary legislation that could tamper with market forces; therefore it is unlikely to pass. In the House, Representative Markey (D) has also discussed reintroducing a net neutrality bill. For 2009, Rep. Markey has reintroduced it.
For example, fair queuing would actually be illegal under several proposals as it requires prioritization of packets based on criteria other than that permitted by the proposed law. Quoting Bram Cohen
, the creator of BitTorrent,"I most definitely do not want the Internet to become like television where there's actual censorship... however it is very difficult to actually create network neutrality laws which don't result in an absurdity like making it so that ISPs can't drop spam or stop... attacks." The Internet Freedom Preservation Act of 2009 excludes reasonable network management from regulation, although because it doesn't contain any language or technical specifications to describe such management schemes, it remains unclear the degree of autonomy network operators would have in managing traffic.
The Wall Street Journal believes that: "Government’s...role here, properly understood, is not to tell Comcast how to manage its network. Rather, it is to make sure consumers have alternatives to Comcast if they are unhappy with their Internet service." This is despite the fact that the overwhelming majority of residential consumers subscribe to Internet access service from 1 of only 2 wireline providers: the cable operator or the telephone company, something cannot be changed by the FCC, (who had called the hearing) but could be changed by Congress with the Broadband Conduit Deployment Act
, and/or with the promotion of municipal broadband
.
George Mason University
fellow Adam Thierer has argued that "any government agency or process big enough to control a major sector of our economy will be prone to influence by those most affected by it," and that consequently "for all the talk we hear about how the FCC's move to impose Net Neutrality regulation is about 'putting consumers first' or 'preserving Net freedom and openness,' it's difficult to ignore the small armies of special interests who stand ready to exploit this new regulatory regime the same way they did telecom and broadcast industry regulation during decades past."
In her recently published research, Aparna Watal, Legal Officer at Attomic Labs, puts forward three reasons for resisting any urge "to react legislatively to the apparent regulatory crisis". Firstly, she explains, "contrary to the general opinion, the Comcast decision does not uproot the Commission’s authority to regulate ISPs. Section 201(b) of the Act, which was cited as an argument by the Commission but not addressed by the Court on procedural grounds, could grant the Commission authority to regulate broadband Internet services where they render “charges, practices and regulations for, and in connection with” common carrier services unjust and unreasonable." Secondly, she suggests, it is "undesirable and premature to legislatively mandate network neutrality or for the Commission to adopt a paternalistic approach on the issue...[as] there have been few overt incidents to date, and the costs of those incidents to consumers have been limited." She cites "prompt media attention and public backlash" as effective policing tools to prevent ISPs from throttling traffic. She suggests that it "would be more prudent to consider introducing modest consumer protection rules, such as requiring ISPs to disclose their network management practices and to allow for consumers to switch ISPs inexpensively, rather than introducing network neutrality laws." Finally, she explains that while "by regulating broadband services the commission is not directly regulating content and applications on the Internet; however, to say that content will remain unaffected by the reclassification is inaccurate. The different layers of the Internet work in tandem with each other such that there is no possibility of throttling or improving one layer’s performance without impacting the other layers. If that was the case, then network neutrality would be maintained regardless of what happened at the transmission layer. To let the Commission regulate broadband pipelines connecting to the Internet and disregard that it indirectly involves regulating the data that runs through them will lead to a complex, overlapping, and fractured regulatory landscape in the years to come."
Some ISPs like AT&T and Verizon have argued that providing varying levels of service to websites at various prices could be a way to manage the costs of unused capacity. It will allow selling surplus bandwidth (or "leverage price discrimination
to recoup costs of 'consumer surplus'") by moving them to the content providers. However, purchasers of connectivity on the basis of Committed Information Rate
or guaranteed bandwidth capacity must expect the capacity they purchase in order to meet their communications requirements.. This would effectively create a 'tiered' internet that will violate some conceptions of net neutrality.
Other ISPs are trying to move to usage-based pricing models. Time Warner Cable, attempted to introduce "consumption based billing" with caps on internet usage much like the model used in the mobile phone industry. They offered packages of 10GB, 20GB, 40GB, and 60GB with $1 overage charges capped at $75 a month. It was met with massive public disapproval and on April 16, 2009, Time Warner was forced to abandon their plan.
The industry is currently looking for alternative pricing models that will be accepted by the market.
In the late 1990s and early 2000s, consumers and businesses began to attach new devices to their Internet connections, and use Internet services that were not in existence in the mid-1990s.
One reaction of many broadband operators was to impose various contractual limits on the activities of their subscribers. In the best known examples, Cox Cable disciplined users of virtual private network
s (VPNs) and AT&T
, as a cable operator, warned customers that using a Wi-Fi
service for home-networking constituted "theft of service
" and a federal crime. Comcast blocked ports of VPNs, forcing the state of Washington, for example, to contract with telecommunications providers to ensure that its employees had access to unimpeded broadband for telecommuting applications.
These early instances of "broadband discrimination" prompted both academic and government responses. In the early 2000s, legal scholars such as Tim Wu
and Lawrence Lessig
raised the issue of neutrality in a series of academic papers addressing regulatory frameworks for packet networks. Wu in particular noted that the Internet is structurally biased against voice and video applications.
Federal Communications Commission
Chairman Michael Powell in 2004 announced a new set of non-discrimination principles, which he called the principles of "Network Freedom." In a speech at the Silicon Flatirons Symposium in February 2004, Powell stated that consumers must have the following four freedoms:
As remarked upon by David Isenberg, Chairman Kevin Martin later modified these four freedoms to read:
On August 5, 2005, the FCC adopted a policy statement stating its adherence to these principles.
Under pressure from the FCC and consumer groups, the broadband operators generally relaxed their most glaring restrictions on network usage.
In early 2005, in the Madison River case, the FCC for the first time showed a willingness to enforce its network neutrality principles by opening an investigation about Madison River Communications, a local telephone carrier that was blocking voice over IP
service. While it is often thought that the FCC fined Madison River Communications following the investigation, it did not. The investigation was closed before any formal factual or legal finding. Instead, there was a settlement in which the company agreed to stop discriminating against voice over IP traffic and to make a $15,000 payment to the US Treasury in exchange for the FCC dropping its inquiry. Since the FCC did not formally establish that Madison River Communications violated laws and regulation, the Madison River settlement does not create a formal precedent. Nevertheless, the FCC's action established that it would not sit idly by if other US operators discriminated against voice over IP traffic.
On 1 August 2008 the FCC formally voted 3-to-2 to uphold a complaint against Comcast
, the largest cable company in the US, ruling that it had illegally inhibited users of its high-speed Internet service from using file-sharing software. The FCC imposed no fine, but required Comcast to end such blocking in the year 2008. Then-FCC chairman Kevin J. Martin said the order was meant to set a precedent that Internet providers, and indeed all communications companies, could not prevent customers from using their networks the way they see fit unless there is a good reason. In an interview Martin stated that “We are preserving the open character of the Internet” and “We are saying that network operators can’t block people from getting access to any content and any applications.” The case highlighted broader issues of whether new legislation is needed to force Internet providers to maintain network neutrality
, i.e. treat all uses of their networks equally. The legal complaint against Comcast
related to BitTorrent, software that is commonly used for downloading movies, television shows, music and software on the Internet.
As of April 6, 2010, the FCC’s 2008 cease and desist order against Comcast (due to Comcast’s efforts to slow, and stop BitTorrent transfers) has been denied. The U.S. Court of Appeals ruled that the FCC has no powers to regulate any Internet provider’s network, or the management of its practices: “[the FCC] ’has failed to tie its assertion’ of regulatory authority to an actual law enacted by Congress.”
services were historically regulated differently according to the technology by which they were carried. While cable Internet has always been classified by the FCC as an information service free of most regulation, DSL was once regulated as a telecommunications service
subject to unbundling requirements. As the two types of networks have increasingly provided the same services, it has become difficult to justify different sets of rules, leading to the question of which rules should apply to both.
Towards the end of 2004, the US legal system voided the rules requiring telephone operators to unbundle
certain parts of their networks at regulated prices, which had as a consequence the economic collapse of many competitors in access services
.
In the U.S., DSL and cable Internet
access were formerly regulated by the FCC according to different rules, but in 2005 the FCC re-classified DSL according to the more permissive cable rules which was the same year that the US Supreme Court in Brand X
upheld the classification of cable Internet
access as an information service.
An additional regulatory complexity is that cable operators and telephone operators are competing beyond broadband Internet access: cable operators by providing telephone service, and telephone service providers by upgrading their networks with FTTX
in order to provide enough bandwidth to support television services.
Advocates of network neutrality wish to re-classify both under the old rules for DSL, which require unbundling and several other restrictions.
Towards the end of 2009, FCC Chair Julius Genachowski
announced at the Brookings Institute a series of proposals that would prevent telecommunications, cable and wireless companies from blocking certain information on the Internet, for example, Skype
applications. Some in the industry, such as David Young of Verizon Communications
, consider the proposal to be the first rules for the internet imposed by the U.S. government.
On December 21, 2010, the FCC voted on a set of net neutrality principles:
1. Transparency: Consumers and innovators have a right to know the basic performance characteristics of their Internet access and how their network is being managed;
2. No Blocking: This includes a right to send and receive lawful traffic. This prohibits the blocking of lawful content, apps, services and the connection of non-harmful devices to the network;
3. Level Playing Field: Consumers and innovators have a right to a level playing field. This means a ban on unreasonable content discrimination. There is no approval for so-called "pay for priority" arrangements involving fast lanes for some companies but not others;
4. Network Management: This is an allowance for broadband providers to engage in reasonable network management. These rules don't forbid providers from offering subscribers tiers of services or charging based on bandwidth consumed;
5. Mobile: The provisions adopted today do not apply as strongly to mobile devices, though some provisions do apply. Of those that do are the broadly applicable rules requiring transparency for mobile broadband providers and prohibiting them from blocking websites and certain competitive applications;
6. Vigilance: The order creates an Open Internet Advisory Committee to assist the Commission in monitoring the state of Internet openness and the effects of the rules.
These measure have been denounced by net neutrality advocates as a capitulation to telecommunication companies such as allowing them to discriminate on transmission speed for their profit, especially on mobile devices like the iPad
, while pro-business advocates, especially in the Republican Party, complain about any regulation of the internet at all.
, New York has established net neutrality as a telecommunications standard (See 16 NYCRR Part 605).
Further, the discussion has been very U.S.-centric and very terrestrial-network centered, even though the Internet is inherently global and mobility is the fastest growing source of new demand.
The immediate debate over "neutrality" does not capture the many dimensions of this topic; for example, should voice packets get higher priority than packets carrying email? Or, should emergency services, mission-critical, or life-saving applications, such as tele-medicine, get priority over spam?
and other wireless service providers are highly relevant to the debate. If successful, such services would provide a third type of broadband access with the potential to change the competitive landscape. For similar reasons, the feasibility of broadband over powerline services
is also important to the network neutrality issue. However, as of the Spring of 2006, deployments beyond cable and DSL service have created little new competition.
Cable companies, in response to this threat, have lobbied Congress for a federal preemption to ban states and municipalities from competing and thereby interfering with interstate commerce. However, there is current Supreme Court precedent for an exception to the Commerce Power
of Congress for states as states going into business for their citizens.
It has been argued, however, that neither municipal wireless
nor other technological solutions such as encryption
, onion routing
, or time-shifting
DVR would be sufficient to render possible discrimination moot.
3GPP
cellular networks provide a practical broadband alternative known as EVDO, which, along with WiMax
, represents a fourth and fifth alternative. WiMax has been deployed in limited areas, and 3GPP in much wider ones.
Network neutrality
Network neutrality is a principle that advocates no restrictions by Internet service providers or governments on consumers' access to networks that participate in the Internet...
in the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
, meaning that telecommunication
Telecommunication
Telecommunication is the transmission of information over significant distances to communicate. In earlier times, telecommunications involved the use of visual signals, such as beacons, smoke signals, semaphore telegraphs, signal flags, and optical heliographs, or audio messages via coded...
s companies rarely offer different rates to broadband and dial-up Internet consumers based on Internet-based content or service type. However, there are no clear legal restrictions against these practices. Broadband providers often block common service ports, such as port 25 (SMTP) or port 80 (HTTP), preventing consumers (and botnets) from hosting web and email servers unless they upgrade to a "business" account. In recent years, advocates of network neutrality have sought to restrict such changes.
In 2005 and 2006, corporations supporting both sides of the issue spent large amounts of money lobbying Congress. In 2006, representatives from several major U.S. corporations and the federal government publicly addressed U.S. Internet services in terms of the nature of free market
Free market
A free market is a competitive market where prices are determined by supply and demand. However, the term is also commonly used for markets in which economic intervention and regulation by the state is limited to tax collection, and enforcement of private ownership and contracts...
forces, the public interest, the physical and software infrastructure of the Internet, and new high-bandwidth technologies.
Five failed attempts have been made to pass bills in Congress
United States Congress
The United States Congress is the bicameral legislature of the federal government of the United States, consisting of the Senate and the House of Representatives. The Congress meets in the United States Capitol in Washington, D.C....
containing some network neutrality provisions. Each of these bills sought to prohibit Internet services providers from using various variable pricing
Variable pricing
Most firms use a fixed price policy. That is, they examine the situation, determine an appropriate price, and leave the price fixed at that amount until the situation changes, at which point they go through the process again...
models based upon the user's Quality of Service
Quality of service
The quality of service refers to several related aspects of telephony and computer networks that allow the transport of traffic with special requirements...
level. Described as tiered service
Tiered service
Tiered service structures allow users to select from a small set of tiers at progressively increasing price points to receive the product or products best suited to their needs. Such systems are frequently seen in the telecommunications field, specifically when it comes to wireless service, digital...
in the industry and as price discrimination
Price discrimination
Price discrimination or price differentiation exists when sales of identical goods or services are transacted at different prices from the same provider...
by some economists, typical provisions in the bill state "[Broadband service providers may] only prioritize...based on the type of content, applications, or services and the level of service purchased by the user, without charge for such prioritization". Other provisions common to the net neutrality discussion were included in the proposed legislative works.
The debate in the U.S. in part extends internationally, due to the global nature of many Internet services. (See the main article on net neutrality for details). In practice, net neutrality is also influenced by state level politics.
History of network neutrality concept
While the term is new, the basic concept originated in the age of the telegram in 1860 or even earlier, where standard (pre-overnight telegram) telegrams were routed 'equally' without attempting to discern their contents and adjusting for one application or another. Such networks are "end-to-end neutral".Services such as telegrams and the phone network (officially, the public switched telephone network
Public switched telephone network
The public switched telephone network is the network of the world's public circuit-switched telephone networks. It consists of telephone lines, fiber optic cables, microwave transmission links, cellular networks, communications satellites, and undersea telephone cables, all inter-connected by...
or PSTN) are considered common carrier
Common carrier
A common carrier in common-law countries is a person or company that transports goods or people for any person or company and that is responsible for any possible loss of the goods during transport...
s under U.S. law, which means that they are considered akin to public utilities and overseen by the Federal Communications Commission
Federal Communications Commission
The Federal Communications Commission is an independent agency of the United States government, created, Congressional statute , and with the majority of its commissioners appointed by the current President. The FCC works towards six goals in the areas of broadband, competition, the spectrum, the...
(FCC) in order to ensure fair pricing and access; such networks are expressly forbidden to give preferential treatment.
In the 1990s, some US politicians expressed concern over protecting the growing new electronic resource.
Cable modem
Cable modem
A cable modem is a type of network bridge and modem that provides bi-directional data communication via radio frequency channels on a HFC and RFoG infrastructure. Cable modems are primarily used to deliver broadband Internet access in the form of cable Internet, taking advantage of the high...
Internet access has always been categorized under U.S. law as an information service, and not a telecommunications service, and thus has not been subject to common carrier regulations, as upheld in National Cable & Telecommunications Association v. Brand X Internet Services
National Cable & Telecommunications Association v. Brand X Internet Services
National Cable & Telecommunications Association et al. v. Brand X Internet Services et al., 545 U.S. 967 , is a case in which the United States Supreme Court declared 6-3 that a cable Internet provider is an "information service," and not a "telecommunications service" and as such competing...
. High-speed data links, which make up the Internet's core, are also not regulated by common carrier law. On the other hand, Internet access across the phone network, including DSL, was for a long time categorized as a telecommunications service, and subject to common carrier regulations. However, on August 5, 2005, the FCC reclassified DSL services as information services rather than telecommunications services, and replaced common carrier requirements on them with a set of four less-restrictive net neutrality principles. These principles, however, are not FCC rules, and therefore not enforceable requirements. Actually implementing the principles requires either official FCC rule-making or federal legislation. As the principles do not impose specific regulations, they sparked a debate over whether or not Internet service provider
Internet service provider
An Internet service provider is a company that provides access to the Internet. Access ISPs directly connect customers to the Internet using copper wires, wireless or fiber-optic connections. Hosting ISPs lease server space for smaller businesses and host other people servers...
s should also be allowed to discriminate between different service providers by offering higher network priority to higher-paying companies and customers, allowing some services to operate faster or more predictably and ultimately become more acceptable to end users.
Some broadband providers have proposed to start charging content providers in return for higher levels of service, creating what is known as a tiered Internet
Tiered Internet
Tiered Internet is a proposed Internet architecture that would allow telecommunications providers to divide traffic over their lines into different tiers. High speed tiers can be dedicated for websites with large broadband applications such as voice and streaming video.-External links:* *...
. Packets originating from providers who pay the additional fees would in some fashion be given better than "neutral" handling, while those content providers who do not pay the higher fees would get a lesser level of service. Given this ability to accelerate the handling of selected packets, the service providers would perhaps give Quality of Service guarantees to given senders or recipients.
The legal debate about net neutrality regulations echoes previous arguments about the public interest requirements of the telecommunications industry, and whether companies involved in broadcasting are best viewed as community trustees, with obligations to society and consumers, or marketplace participants with obligations only to their shareholders.
FCC rules do not clearly prevent telecommunications companies from charging fees to certain content providers in exchange for preferential treatment. On the other hand, neutrality advocates Tim Wu
Tim Wu
Tim Wu is a professor at Columbia Law School, the former chair of media reform group Free Press, and a writer for Slate Magazine. He is also a former Bernard L. Schwartz and Future Tense fellow at The New America Foundation...
and Lawrence Lessig
Lawrence Lessig
Lawrence "Larry" Lessig is an American academic and political activist. He is best known as a proponent of reduced legal restrictions on copyright, trademark, and radio frequency spectrum, particularly in technology applications, and he has called for state-based activism to promote substantive...
have argued that the FCC does have regulatory power over the matter, following from the must-carry
Must-carry
In cable television, governments apply a must-carry regulation stating that locally-licensed television stations must be carried on a cable provider's system.- Canada :...
precedent set in the Supreme Court case Turner I.
Recent developments
In 2005, the FCC adopted a policy statement stating its adherence to four principles of network neutrality. In November 2005 Edward Whitacre, Jr.Edward Whitacre, Jr.
Edward Earl "Ed" Whitacre, Jr. is the former Chairman and CEO of General Motors. He is also a former chairman of the board and chief executive officer of AT&T Inc., previously SBC. He served as national president of the Boy Scouts of America from 1998 to 2000...
, then Chief Executive Officer
Chief executive officer
A chief executive officer , managing director , Executive Director for non-profit organizations, or chief executive is the highest-ranking corporate officer or administrator in charge of total management of an organization...
of SBC Communications, stated "there's going to have to be some mechanism for these [Internet upstarts] who use these pipes to pay for the portion they're using", and that "The Internet can't be free in that sense, because we and the cable companies have made an investment," sparking a furious debate. SBC spokesman Michael Balmoris said that Whitacre was misinterpreted and his comments only referred to new tiered services.
On June 28, 2006, the Senate Commerce Committee approved the Telecommunications and Opportunities Reform Act, which entails guidelines combating discrimination. The act detailed broadband consumer rights without nondiscriminatory language urged by net neutrality advocates, thought to be a compromise between the ever-battling net neutrality campaigns. It also instituted parameters regarding the actions taken by broadcasters and various media players. However, this bill failed to pass both houses.
In a June 2007 report, the United States Federal Trade Commission
Federal Trade Commission
The Federal Trade Commission is an independent agency of the United States government, established in 1914 by the Federal Trade Commission Act...
(FTC) urged restraint with respect to the new regulations proposed by network neutrality advocates, noting the "broadband industry is a relatively young and evolving one," and given no "significant market failure or demonstrated consumer harm from conduct by broadband providers," such regulations "may well have adverse effects on consumer welfare, despite the good intentions of their proponents." In turn, the FTC conclusions have been questioned in Congress, as in September 2007, when Sen. Byron Dorgan
Byron Dorgan
Byron Leslie Dorgan is a former United States Senator from North Dakota and is now a senior policy advisor for a Washington, DC law firm. He is a member of the North Dakota Democratic-NPL Party, the North Dakota affiliate of the Democratic Party. In the Senate, he was Chairman of the Democratic...
, D-N.D., chairman of the Senate interstate commerce, trade and tourism subcommittee, told FTC Chairwoman Deborah Platt Majoras
Deborah Platt Majoras
Deborah Platt Majoras is the former chairman of the Federal Trade Commission, appointed May 11, 2004, by President George W. Bush and sworn in on August 16, 2004. President Bush had announced his intention to appoint her to the position on July 30, 2004...
that he feared new services as groundbreaking as Google
Google
Google Inc. is an American multinational public corporation invested in Internet search, cloud computing, and advertising technologies. Google hosts and develops a number of Internet-based services and products, and generates profit primarily from advertising through its AdWords program...
could not get started in a system with price discrimination.
In October 2007, Comcast
Comcast
Comcast Corporation is the largest cable operator, home Internet service provider, and fourth largest home telephone service provider in the United States, providing cable television, broadband Internet, and telephone service to both residential and commercial customers in 39 states and the...
was found to be blocking or severely delaying BitTorrent uploads on their network using a technique which involved creating 'reset' packets (TCP RST) that appeared to come from the other party. On March 27, 2008, Comcast
Comcast
Comcast Corporation is the largest cable operator, home Internet service provider, and fourth largest home telephone service provider in the United States, providing cable television, broadband Internet, and telephone service to both residential and commercial customers in 39 states and the...
and BitTorrent reached an agreement to work together on network traffic. Comcast will adopt a protocol-neutral stance "as soon as the end of [2008]", and explore ways to "more effectively manage traffic on its network at peak times." Comcast reached a proposed settlement in December 2009 of 16 million, admitting no wrongdoing and amounting to no more than 16 dollars per share.
On February 25, 2008, Kevin Martin
Kevin Martin (FCC)
Kevin Jeffrey Martin was the Chairman of the Federal Communications Commission. He was nominated to be a commissioner by President George W. Bush on April 30, 2001, and was confirmed on May 25, 2001. On March 16, 2005, President Bush designated him as FCC chairman, to replace Michael K. Powell...
, the Chairman of the Federal Communications Commission, said that he is "ready, willing and able," to prevent broadband
Broadband
The term broadband refers to a telecommunications signal or device of greater bandwidth, in some sense, than another standard or usual signal or device . Different criteria for "broad" have been applied in different contexts and at different times...
Internet service providers from irrationally interfering with their subscribers' Internet access.
In August 2008, the FCC ruled that Comcast broke the law when it throttled
Bandwidth throttling
Bandwidth throttling is a reactive measure employed in communication networks to regulate network traffic and minimize bandwidth congestion. Bandwidth throttling can occur at different locations on the network. On a local area network , a sysadmin may employ bandwidth throttling to help limit...
the bandwidth available to certain customers for video files in order to make sure that other customers had adequate bandwidth. The FCC ordered Comcast to disclose the details of its network management practices within 30 days, submit a compliance plan for ending the offending practices by the end of the year, and disclose to the public the details of intended future practices. The FCC’s order was the first Internet network management decision of its kind.
January 2008, Time Warner Cable first introduced their intention to move to a "consumption based billing" plan to continue profitable net neutrality. In 2009, information was released that packages would be 10GB, 20GB, 40GB, and 60GB, and featured overage charges of $1 per GB, capped at $75, and Time Warner launched the pricing system in several markets including Rochester, NY, Beaumont, TX and Austin, TX. There was a public outcry. Early April, they announced that they would offer larger packages. Public dissatisfaction did not recede. On April 16, they were forced to abandon the plan altogether.
On June 6, 2010, the United States Court of Appeal for the District of Columbia in Comcast Corp. v. FCC
Comcast Corp. v. FCC
Comcast Corp. v. FCC, 600 F.3d 642, is a 2010 United States Court of Appeals for the District of Columbia case holding that the Federal Communications Commission does not have ancillary jurisdiction over Comcast’s Internet service under the language of the Communications Act of 1934...
ruled that the FCC lacks the authority to force Internet service providers to keep their networks open to all forms of content.
In May 2010, after reports indicated the FCC would drop their effort to enforce net neutrality, they announced they would continue their fight. It was believed the FCC would not be able to enforce net neutrality after a Federal court's overthrow of the agency's Order against Comcast.
On December 21, 2010, the FCC approved new rules
FCC Open Internet Order 2010
The Federal Communications Commission Open Internet Order is a set of regulations that move towards the establishment of the internet neutrality concept. Some opponents of net neutrality believe such internet regulation would inhibit innovation by preventing providers from capitalizing on their...
banning cable television
Cable television
Cable television is a system of providing television programs to consumers via radio frequency signals transmitted to televisions through coaxial cables or digital light pulses through fixed optical fibers located on the subscriber's property, much like the over-the-air method used in traditional...
and telephone
Telephone
The telephone , colloquially referred to as a phone, is a telecommunications device that transmits and receives sounds, usually the human voice. Telephones are a point-to-point communication system whose most basic function is to allow two people separated by large distances to talk to each other...
service providers from preventing access to competitors or certain web sites such as Netflix
Netflix
Netflix, Inc., is an American provider of on-demand internet streaming media in the United States, Canada, and Latin America and flat rate DVD-by-mail in the United States. The company was established in 1997 and is headquartered in Los Gatos, California...
. The rules would not keep ISPs from charging more for faster access. Republicans
Republican Party (United States)
The Republican Party is one of the two major contemporary political parties in the United States, along with the Democratic Party. Founded by anti-slavery expansion activists in 1854, it is often called the GOP . The party's platform generally reflects American conservatism in the U.S...
in Congress
United States Congress
The United States Congress is the bicameral legislature of the federal government of the United States, consisting of the Senate and the House of Representatives. The Congress meets in the United States Capitol in Washington, D.C....
plan to reverse the rules through legislation.
The FCC's net neutrality R&O
FCC Open Internet Order 2010
The Federal Communications Commission Open Internet Order is a set of regulations that move towards the establishment of the internet neutrality concept. Some opponents of net neutrality believe such internet regulation would inhibit innovation by preventing providers from capitalizing on their...
put forward the following rules to govern non-discrimination online:
§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. (Note: The rule does not require public disclosure of competitively sensitive information or information that would compromise network security or undermine the efficacy of subject to reasonable network management practices.)
§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.
Positions
Organizations that support network neutrality come from widely varied political backgrounds and include groups such as Moveon.org, Free PressFree Press (organization)
Free Press is a nonpartisan, nonprofit, national organization working to reform the media in the United States.It was founded in 2002 by media scholar Robert W. McChesney, The Nation contributor John Nichols, and Josh Silver, current CEO of the Democracy Fund, a foundation challenging the influence...
, Consumer Federation of America
Consumer Federation of America
The Consumer Federation of America is a non-profit organization founded in 1968 to advance consumer interests through research, education and advocacy....
, AARP
AARP
AARP, formerly the American Association of Retired Persons, is the United States-based non-governmental organization and interest group, founded in 1958 by Ethel Percy Andrus, PhD, a retired educator from California, and based in Washington, D.C. According to its mission statement, it is "a...
, American Library Association
American Library Association
The American Library Association is a non-profit organization based in the United States that promotes libraries and library education internationally. It is the oldest and largest library association in the world, with more than 62,000 members....
, Gun Owners of America
Gun Owners of America
Gun Owners of America is a gun rights organization in the United States with over 300,000 members. They make efforts to differentiate themselves from the larger National Rifle Association , and have publicly criticized the NRA on multiple occasions for what the GOA considers to be the selling out...
, Public Knowledge
Public Knowledge
Public Knowledge is a non-profit Washington, D.C.-based public interest group that is involved in intellectual property law, competition, and choice in the digital marketplace, and an open standards/end-to-end internet....
, the Media Access Project
Media Access Project
The Media Access Project is a non-profit group that promotes the public’s interest before Congress and the US court system. MAP grew out of a 1960’s lawsuit against the United Church of Christ and was eventually formed in 1972 in order to advance the rights of the public wanting to participate in...
, the Christian Coalition, and TechNet
TechNet (lobbying organization)
TechNet is a United States political lobbying organization which represents public policy interests for technology issues. TechNet operates through a network of CEOs and Senior Executives to promote the growth of technology and the innovation economy...
. Tim Berners-Lee
Tim Berners-Lee
Sir Timothy John "Tim" Berners-Lee, , also known as "TimBL", is a British computer scientist, MIT professor and the inventor of the World Wide Web...
(the inventor of the World Wide Web) has also spoken out in favor of net neutrality.
The free-market advocacy organizations FreedomWorks
FreedomWorks
FreedomWorks is a conservative non-profit organization based in Washington D.C., United States. FreedomWorks trains volunteers, assists in campaigns, and encourages them to mobilize, interacting with both fellow citizens and their political representatives....
Foundation, National Black Chamber of Commerce, the Competitive Enterprise Institute, and the Progress and Freedom Foundation; and high-tech trade groups such as the National Association of Manufacturers, oppose network neutrality
Network neutrality
Network neutrality is a principle that advocates no restrictions by Internet service providers or governments on consumers' access to networks that participate in the Internet...
.
Journalist Andy Kessler has argued this point, stating that the threat of eminent domain
Eminent domain
Eminent domain , compulsory purchase , resumption/compulsory acquisition , or expropriation is an action of the state to seize a citizen's private property, expropriate property, or seize a citizen's rights in property with due monetary compensation, but without the owner's consent...
against the telcos, instead of new legislation, is the best approach.
Some U.S. technology trade associations have remained noncommittal on the issue. The U.S. financial sector has similarly remained neutral.
Network neutrality regulations are also opposed by free market advocacy groups, such as Americans for Prosperity
Americans for Prosperity
Americans for Prosperity is a Washington, D.C.–based political advocacy group. According to their literature, they promote economic policy that supports business, and restrains regulation by government...
and their website No Internet Takeover, as well as minority advocacy groups such as the National Black Chamber of Commerce
National Black Chamber of Commerce
The National Black Chamber of Commerce was incorporated in 1993 by Harry Alford and Kay DeBow, who in 2011 continue as President/CEO and Executive Vice President, respectively. Harry Alford is also a Board member of the United States Chamber of Commerce. It is organized as a 5013 corporation and...
and LULAC. The Communications Workers of America
Communications Workers of America
Communications Workers of America is the largest communications and media labor union in the United States representing about 550,000 members in both the private and public sectors. The union has 27 locals in Canada via CWA-SCA Canada representing about 8,000 members...
, the largest union representing installers and maintainers of telecommunications infrastructure, opposes the regulations. One commonly-made argument against net neutrality is that it would primarily benefit industry lobbyists and not consumers.
Many network neutrality opponents also oppose telecom common carrier regulations and regulated transparency to customers. Conversely, not all network neutrality proponents emphasize transparency to customers, and most proponents do not phrase network neutrality in terms of existing telecom carrier restrictions even when the desired state is equivalent. In many cases, a return to treating internet service links as telecommunication rather than information carrier services would re-invoke sufficient restrictions on discrimination and refusal to carry to satisfy most definitions of network neutrality. It would also return the carriers to the conditions of limited liability that were in part breached by the 2005 FCC decision that DSL services are information services not telecom services, and thus not subject to common carrier rules.
A number of these opponents have created a website called Hands Off The Internet to explain their arguments against net neutrality. Principal financial support for the website comes from AT&T, and members include technology firms such as Alcatel
Alcatel
Alcatel Mobile Phones is a brand of mobile handsets. It was established in 2004 as a joint venture between Alcatel-Lucent of France and TCL Communication of China....
, 3M
3M
3M Company , formerly known as the Minnesota Mining and Manufacturing Company, is an American multinational conglomerate corporation based in Maplewood, Minnesota, United States....
and pro-market advocacy group Citizens Against Government Waste
Citizens Against Government Waste
Citizens Against Government Waste is a 501 non-profit organization in the United States. It functions as a think-tank, 'government watchdog', and advocacy group for fiscally conservative causes...
.
Corporate astroturfing
Astroturfing
Astroturfing is a form of advocacy in support of a political, organizational, or corporate agenda, designed to give the appearance of a "grassroots" movement. The goal of such campaigns is to disguise the efforts of a political and/or commercial entity as an independent public reaction to some...
is alleged. For example, one print ad seems to frame the Hands Off the Internet message in pro-consumer terms. "Net neutrality means consumers will be stuck paying more for their Internet access to cover the big online companies' share," the ad claims.
Attempted legislation
Some of the arguments associated with network neutrality regulations came into prominence in mid 2002, offered by the "High Tech Broadband Coalition", a group comprising developers for Amazon.comAmazon.com
Amazon.com, Inc. is a multinational electronic commerce company headquartered in Seattle, Washington, United States. It is the world's largest online retailer. Amazon has separate websites for the following countries: United States, Canada, United Kingdom, Germany, France, Italy, Spain, Japan, and...
Google
Google Inc. is an American multinational public corporation invested in Internet search, cloud computing, and advertising technologies. Google hosts and develops a number of Internet-based services and products, and generates profit primarily from advertising through its AdWords program...
, and Microsoft
Microsoft
Microsoft Corporation is an American public multinational corporation headquartered in Redmond, Washington, USA that develops, manufactures, licenses, and supports a wide range of products and services predominantly related to computing through its various product divisions...
. However, the fuller concept of "Network neutrality" was developed mainly by regulators and legal academics, most prominently law professors Tim Wu
Tim Wu
Tim Wu is a professor at Columbia Law School, the former chair of media reform group Free Press, and a writer for Slate Magazine. He is also a former Bernard L. Schwartz and Future Tense fellow at The New America Foundation...
and Lawrence Lessig
Lawrence Lessig
Lawrence "Larry" Lessig is an American academic and political activist. He is best known as a proponent of reduced legal restrictions on copyright, trademark, and radio frequency spectrum, particularly in technology applications, and he has called for state-based activism to promote substantive...
and Federal Communications Commission
Federal Communications Commission
The Federal Communications Commission is an independent agency of the United States government, created, Congressional statute , and with the majority of its commissioners appointed by the current President. The FCC works towards six goals in the areas of broadband, competition, the spectrum, the...
Chairman Michael Powell
Michael Powell (politician)
Michael Kevin Powell is an American Republican politician and lobbyist. He is the incoming president of the National Cable & Telecommunications Association . He was appointed to the Federal Communications Commission by President Bill Clinton on 3 November 1997. President George W. Bush designated...
most often while speaking at the Annual Digital Broadband Migration conference or writing within the pages of the Journal of Telecommunications and High Technology Law, both of the University of Colorado School of Law
University of Colorado School of Law
The University of Colorado Law School is one of the professional graduate schools within the University of Colorado System. It is a public law school, with more than 500 students attending and working toward a Juris Doctor or Master of Law. The Wolf Law Building Located in Boulder, Colorado, and...
. However, the ideas underlying network neutrality have a long pedigree in telecommunications practice and regulation.
Proposals for network neutrality laws are generally opposed by the cable television
Cable television
Cable television is a system of providing television programs to consumers via radio frequency signals transmitted to televisions through coaxial cables or digital light pulses through fixed optical fibers located on the subscriber's property, much like the over-the-air method used in traditional...
and telephone industries, and some network engineers
Network engineering
In telecommunications, network engineering may refer to:*The field concerned with internetworking service requirements for switched telephone networks and developing the required hardware and software...
and free-market scholars from the conservative
Conservatism
Conservatism is a political and social philosophy that promotes the maintenance of traditional institutions and supports, at the most, minimal and gradual change in society. Some conservatives seek to preserve things as they are, emphasizing stability and continuity, while others oppose modernism...
to libertarian
Libertarianism
Libertarianism, in the strictest sense, is the political philosophy that holds individual liberty as the basic moral principle of society. In the broadest sense, it is any political philosophy which approximates this view...
, including Christopher Yoo
Christopher Yoo
Christopher S. Yoo is a professor of Law, Communication, and Computer and Information Science at the University of Pennsylvania Law School, and founding director of the Center for Technology, Innovation, and Competition. He is well known for his work on technology law, media law and copyright, in...
and Adam Thierer. Opponents argue that (1) Network neutrality regulations severely limit the Internet's usefulness; (2) network neutrality regulations threaten to set a precedent for even more intrusive regulation of the Internet; (3) imposing such regulation will chill investment in competitive networks (e.g., wireless broadband) and deny network providers the ability to differentiate their services; and (4) that network neutrality regulations confuse the unregulated Internet with the highly regulated telecom lines that it has shared with voice and cable customers for most of its history.
By late 2005, network neutrality regulations were included in several Congress
United States Congress
The United States Congress is the bicameral legislature of the federal government of the United States, consisting of the Senate and the House of Representatives. The Congress meets in the United States Capitol in Washington, D.C....
ional draft bills, as a part of ongoing proposals to reform the Telecommunications Act of 1996
Telecommunications Act of 1996
The Telecommunications Act of 1996 was the first major overhaul of United States telecommunications law in nearly 62 years, amending the Communications Act of 1934. This Act, signed by President Bill Clinton, was a major stepping stone towards the future of telecommunications, since this was the...
. They would generally require Internet providers to allow consumers access to any application, content, or service. However, important exceptions allow providers to discriminate for security purposes, or to offer specialized services like "broadband video" service. These regulations generally forbid ISPs from offering different service plans to their customers.
In April 2006 a large coalition of public interest, consumer rights and free speech advocacy groups and thousands of bloggers -- such as Free Press
Free Press (organization)
Free Press is a nonpartisan, nonprofit, national organization working to reform the media in the United States.It was founded in 2002 by media scholar Robert W. McChesney, The Nation contributor John Nichols, and Josh Silver, current CEO of the Democracy Fund, a foundation challenging the influence...
, People for the Ethical Treatment of Animals
People for the Ethical Treatment of Animals
People for the Ethical Treatment of Animals is an American animal rights organization based in Norfolk, Virginia, and led by Ingrid Newkirk, its international president. A non-profit corporation with 300 employees and two million members and supporters, it claims to be the largest animal rights...
, American Library Association
American Library Association
The American Library Association is a non-profit organization based in the United States that promotes libraries and library education internationally. It is the oldest and largest library association in the world, with more than 62,000 members....
, Christian Coalition of America, Consumers Union
Consumers Union
Consumers Union is a non-profit organization best known as the publisher of Consumer Reports, based in the United States. Its mission is to "test products, inform the public, and protect consumers."...
, Common Cause
Common Cause
Common Cause is a self-described nonpartisan, nonprofit lobby and advocacy organization. It was founded in 1970 by John W. Gardner, a Republican former cabinet secretary under Lyndon Johnson, as a "citizens' lobby" with a mission focused on making U.S. political institutions more open and...
and MoveOn.org -- launched the SavetheInternet.com Coalition, a broad-based initiative working to "ensure that Congress passes no telecommunications legislation without meaningful and enforceable network neutrality protections." Within two months of its establishment, over 1,000,000 signatures were delivered to Congress in favor of a network neutrality policies. By the close of 2006, SavetheInternet.com had collected more than 1.5 million signatures effectively stalling legislation in Congress that didn't write Net Neutrality protections into law.
The two proposed versions of "neutrality" legislation to date would prohibit: (1) the "tiering" of broadband through sale of voice- or video-oriented Quality of Service packages; and (2) content- or service-sensitive blocking or censorship on the part of broadband carriers. These bills have been sponsored by Representatives Markey, Sensenbrenner, et al., and Senators Snowe, Dorgan, and Wyden.
The following legislative proposals have been introduced in Congress to address the network neutrality question:
| Title | Bill number | Date introduced | Sponsors | Provisions | Status |
|---|---|---|---|---|---|
| 109th Congress of the United States (January 2005 – January 2007) | |||||
| Internet Freedom and Nondiscrimination Act of 2006 Internet Freedom and Nondiscrimination Act of 2006 The Internet Freedom and Nondiscrimination Act of 2006 is a bill in the United States House of Representatives. It is one of several bills on the topic of network neutrality proposed as part of a major overhaul of the Telecommunications Act of 1996. The Act is sponsored by Rep. James Sensenbrenner... |
S. 2360 | March 2, 2006 | Senator Ron Wyden Ron Wyden Ronald Lee "Ron" Wyden is the senior U.S. Senator for Oregon, serving since 1996, and a member of the Democratic Party. He previously served in the United States House of Representatives from 1981 to 1996.... (D-Oregon) |
Prohibits blocking or modification of data in transit, except to filter spam, malware, and illegal content; mandates common-carrier rules for subscriber network operators. | Killed by the end of 109th Congress. |
| Communications Opportunity, Promotion and Enhancement Act of 2006 Communications Opportunity, Promotion and Enhancement Act of 2006 The Communications Opportunity, Promotion and Enhancement Act of 2006 was a bill in the US House of Representatives. It was part of a major overhaul of the Telecommunications Act of 1996 being considered by the US Congress. The Act was sponsored by Commerce Committee Chairman Joe Barton , Rep.... |
H.R. 5252 | March 30, 2006 | Representative Joe Barton Joe Barton Joseph Linus "Joe" Barton is a Republican politician, representing in the U.S. House of Representatives since 1985, and a member of the Tea Party Caucus... (R-Texas and Chairman of the House Commerce Committee) |
Proposes to create a national franchise for video providers, and additionally addresses net neutrality, e911, and municipal broadband Municipal broadband Municipal broadband deployments are broadband Internet access services provided either fully or partially by local governments. Common connection technologies include unlicensed wireless , licensed wireless , and fiber-optic... . |
Passed 321-101 by the full House of Representatives United States House of Representatives The United States House of Representatives is one of the two Houses of the United States Congress, the bicameral legislature which also includes the Senate.The composition and powers of the House are established in Article One of the Constitution... on June 8, 2006- but with the Network Neutrality provisions of the Markey Ed Markey Edward John "Ed" Markey is the U.S. Representative for , serving since 1976. He is a member of the Democratic Party. The district includes most of Boston's northern and western suburbs, such as Medford and Framingham. Markey is the Dean of both the Massachusetts and New England House delegations... Amendment removed. Bill killed by end of 109th Congress. |
| Network Neutrality Act of 2006 | H.R. 5273 | April 3, 2006 | Representative Ed Markey Ed Markey Edward John "Ed" Markey is the U.S. Representative for , serving since 1976. He is a member of the Democratic Party. The district includes most of Boston's northern and western suburbs, such as Medford and Framingham. Markey is the Dean of both the Massachusetts and New England House delegations... (D-Massachusetts) |
Amends the Communications Opportunity, Promotion, and Enhancement Act of 2006 (COPE) to make its existing neutrality provisions more strict. | Defeated 34-22 in committee with Republicans and some Democrats opposing, most Democrats supporting. |
| Communications, Consumer’s Choice, and Broadband Deployment Act of 2006 | S. 2686 | May 1, 2006 | Senators Ted Stevens Ted Stevens Theodore Fulton "Ted" Stevens, Sr. was a United States Senator from Alaska, serving from December 24, 1968, until January 3, 2009, and thus the longest-serving Republican senator in history... (R-Alaska) & Daniel Inouye Daniel Inouye Daniel Ken "Dan" Inouye is the senior United States Senator from Hawaii, a member of the Democratic Party, and the President pro tempore of the United States Senate making him the highest-ranking Asian American politician in American history. Inouye is the chairman of the United States Senate... (D-Hawaii) |
Aims to amend the Communications Act of 1934 Communications Act of 1934 The Communications Act of 1934 is a United States federal law, enacted as Public Law Number 416, Act of June 19, 1934, ch. 652, 48 Stat. 1064, by the 73rd Congress, signed by President Franklin D. Roosevelt, codified as Chapter 5 of Title 47 of the United States Code, et seq. The Act replaced the... and addresses net neutrality by directing the Federal Communications Commission Federal Communications Commission The Federal Communications Commission is an independent agency of the United States government, created, Congressional statute , and with the majority of its commissioners appointed by the current President. The FCC works towards six goals in the areas of broadband, competition, the spectrum, the... (FCC) to conduct a study of abusive business practices predicted by the Save the Internet coalition and similar groups. |
Sent to the full Senate in a 15-7 committee vote and defeated by the Senate Committee on Commerce, Science, & Transportation United States Senate Committee on Commerce, Science and Transportation The United States Senate Committee on Commerce, Science, and Transportation is a standing committee of the United States Senate in charge of all senate matters related to the following subjects:* Coast Guard* Coastal zone management* Communications... on June 28, 2006. Killed by the end of 109th Congress. |
| Internet Freedom and Nondiscrimination Act of 2006 Internet Freedom and Nondiscrimination Act of 2006 The Internet Freedom and Nondiscrimination Act of 2006 is a bill in the United States House of Representatives. It is one of several bills on the topic of network neutrality proposed as part of a major overhaul of the Telecommunications Act of 1996. The Act is sponsored by Rep. James Sensenbrenner... |
H.R. 5417 | May 18, 2006 | Representatives Jim Sensenbrenner Jim Sensenbrenner Frank James Sensenbrenner, Jr. is an American politician who has been a member of the Republican Party in the United States House of Representatives since 1979, representing . The district, the state's richest, includes many of Milwaukee's northern and western suburbs, and extends into rural... (R-Wisconsin) & John Conyers John Conyers John Conyers, Jr. is the U.S. Representative for , serving since 1965 . He is a member of the Democratic Party... (D-Michigan) |
Makes it a violation of the Clayton Antitrust Act Clayton Antitrust Act The Clayton Antitrust Act of 1914 , was enacted in the United States to add further substance to the U.S. antitrust law regime by seeking to prevent anticompetitive practices in their incipiency. That regime started with the Sherman Antitrust Act of 1890, the first Federal law outlawing practices... for broadband providers to discriminate against any web traffic, refuse to connect to other providers, block or impair specific (legal) content; prohibits the use of admission control to determine network traffic priority. |
Approved 20-13 by the House Judiciary committee United States House Committee on the Judiciary The U.S. House Committee on the Judiciary, also called the House Judiciary Committee, is a standing committee of the United States House of Representatives. It is charged with overseeing the administration of justice within the federal courts, administrative agencies and Federal law enforcement... on May 25, 2006. Killed by the end of 109th Congress. |
| 110th Congress of the United States (January 2007 – January 2009) | |||||
| Internet Freedom Preservation Act (casually known as the Snowe-Dorgan bill) | S. 215 (110th Congress) formerly S. 2917 (109th Congress) | January 9, 2007 | Senators Olympia Snowe Olympia Snowe Olympia Jean Snowe , née Bouchles, is the senior United States Senator from Maine and a member of the Republican Party. Snowe has become widely known for her ability to influence the outcome of close votes, including whether to end filibusters. She and her fellow Senator from Maine, Susan Collins,... (R-Maine) & Byron Dorgan Byron Dorgan Byron Leslie Dorgan is a former United States Senator from North Dakota and is now a senior policy advisor for a Washington, DC law firm. He is a member of the North Dakota Democratic-NPL Party, the North Dakota affiliate of the Democratic Party. In the Senate, he was Chairman of the Democratic... (D-North Dakota), Co-Sponsors: Barack Obama Barack Obama Barack Hussein Obama II is the 44th and current President of the United States. He is the first African American to hold the office. Obama previously served as a United States Senator from Illinois, from January 2005 until he resigned following his victory in the 2008 presidential election.Born in... (D-Illinois), Hillary Clinton (D-New York), John Kerry John Kerry John Forbes Kerry is the senior United States Senator from Massachusetts, the 10th most senior U.S. Senator and chairman of the Senate Foreign Relations Committee. He was the presidential nominee of the Democratic Party in the 2004 presidential election, but lost to former President George W... (D-Massachusetts) and other Senators |
Amends the Communications Act of 1934 Communications Act of 1934 The Communications Act of 1934 is a United States federal law, enacted as Public Law Number 416, Act of June 19, 1934, ch. 652, 48 Stat. 1064, by the 73rd Congress, signed by President Franklin D. Roosevelt, codified as Chapter 5 of Title 47 of the United States Code, et seq. The Act replaced the... . Introduces a ban on the blocking/degradation of lawful content, forbids tying Internet access to purchase further services, and a ban on QoS Quality of service The quality of service refers to several related aspects of telephony and computer networks that allow the transport of traffic with special requirements... deals between network providers and specific content providers. However, it still allows prioritizing content as long as it origins from the provider's own network, see Sec. 12 (a) (5). Makes the FCC responsible for enforcing complaints and conducting reports on the state of the broadband market. |
Read twice and referred to the U.S. Senate Committee on Commerce, Science, and Transportation. |
| Internet Freedom Preservation Act of 2008 | H.R.3458 | February 12, 2008 | Representatives Edward Markey (D-Massachusetts) & Charles Pickering Chip Pickering "Charles Willis Pickering" redirects here. For this former congressman's father, see Charles W. Pickering.Charles Willis "Chip" Pickering, Jr. is a politician in the U.S. state of Mississippi. He represented as a Republican in the United States House of Representatives... (R-Mississippi) |
To establish broadband policy and direct the Federal Communications Commission Federal Communications Commission The Federal Communications Commission is an independent agency of the United States government, created, Congressional statute , and with the majority of its commissioners appointed by the current President. The FCC works towards six goals in the areas of broadband, competition, the spectrum, the... to conduct a proceeding and public broadband summits to assess competition, consumer protection, and consumer choice issues relating to broadband Internet access services, and for other purposes. |
Introduced to the House Energy and Commerce Committee |
| (D) = a member of the House Democratic Caucus of the United States House of Representatives The House Democratic Caucus nominates and elects the Democratic Party leadership in the United States House of Representatives. The group is composed of all Democratic Representatives in the House... or Senate Democratic Caucus Democratic Caucus of the United States Senate The Senate Democratic Caucus is the formal organization of the current 51 Democratic Senators in the United States Senate. In the 112th Congress, the Democratic Caucus additionally includes two independent senators who formally caucus with the Democrats for the purpose of committee assignments... ; (R) = a member of the House Republican Conference of the United States House of Representatives The House Republican Conference is the party caucus for Republicans in the United States House of Representatives. It hosts meetings and is the primary forum for communicating the party's message to members... or Senate Republican Conference Republican Conference of the United States Senate The Senate Republican Conference is the formal organization of the Republican Senators in the United States Senate, who currently number 47. Over the last century, the mission of the Conference has expanded and been shaped as a means of informing the media of the opinions and activities of Senate... |
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Congressman Adam Schiff
Adam Schiff
Adam Bennett Schiff is the U.S. Representative for . He has served in Congress since 2001. He is a member of the Democratic Party...
(D-California), one of the Democrats who voted for the Sensenbrenner-Conyers bill, said: "I think the bill is a blunt instrument, and yet I think it does send a message that it's important to attain jurisdiction for the Justice Department and for antitrust
Antitrust
The United States antitrust law is a body of laws that prohibits anti-competitive behavior and unfair business practices. Antitrust laws are intended to encourage competition in the marketplace. These competition laws make illegal certain practices deemed to hurt businesses or consumers or both,...
issues."
Although no new bills regulating net neutrality have been introduced in the 111th Congress, Senator Dorgan (D) was reportedly preparing a bill in December 2008. In any case, net neutrality bills are referred to the Senate Committee on Commerce, Science, and Transportation. The Committee Chair, Rockefellar (D) has expressed caution about introducing unnecessary legislation that could tamper with market forces; therefore it is unlikely to pass. In the House, Representative Markey (D) has also discussed reintroducing a net neutrality bill. For 2009, Rep. Markey has reintroduced it.
Opposition to legislation
Given a rapidly-changing technological and market environment, many in the public policy area question the government's ability to make and maintain meaningful regulation that doesn't cause more harm than good.For example, fair queuing would actually be illegal under several proposals as it requires prioritization of packets based on criteria other than that permitted by the proposed law. Quoting Bram Cohen
Bram Cohen
Bram Cohen is an American computer programmer, best known as the author of the peer-to-peer BitTorrent protocol, as well as the first file sharing program to use the protocol, also known as BitTorrent...
, the creator of BitTorrent,"I most definitely do not want the Internet to become like television where there's actual censorship... however it is very difficult to actually create network neutrality laws which don't result in an absurdity like making it so that ISPs can't drop spam or stop... attacks." The Internet Freedom Preservation Act of 2009 excludes reasonable network management from regulation, although because it doesn't contain any language or technical specifications to describe such management schemes, it remains unclear the degree of autonomy network operators would have in managing traffic.
The Wall Street Journal believes that: "Government’s...role here, properly understood, is not to tell Comcast how to manage its network. Rather, it is to make sure consumers have alternatives to Comcast if they are unhappy with their Internet service." This is despite the fact that the overwhelming majority of residential consumers subscribe to Internet access service from 1 of only 2 wireline providers: the cable operator or the telephone company, something cannot be changed by the FCC, (who had called the hearing) but could be changed by Congress with the Broadband Conduit Deployment Act
Broadband Conduit Deployment Act
The Broadband Conduit Deployment Act of 2009, HR 2428, would require new federal road projects to include plastic conduits buried along the side of the roadway, and enough of them to "accommodate multiple broadband providers."...
, and/or with the promotion of municipal broadband
Municipal broadband
Municipal broadband deployments are broadband Internet access services provided either fully or partially by local governments. Common connection technologies include unlicensed wireless , licensed wireless , and fiber-optic...
.
George Mason University
George Mason University
George Mason University is a public university based in unincorporated Fairfax County, Virginia, United States, south of and adjacent to the city of Fairfax. Additional campuses are located nearby in Arlington County, Prince William County, and Loudoun County...
fellow Adam Thierer has argued that "any government agency or process big enough to control a major sector of our economy will be prone to influence by those most affected by it," and that consequently "for all the talk we hear about how the FCC's move to impose Net Neutrality regulation is about 'putting consumers first' or 'preserving Net freedom and openness,' it's difficult to ignore the small armies of special interests who stand ready to exploit this new regulatory regime the same way they did telecom and broadcast industry regulation during decades past."
In her recently published research, Aparna Watal, Legal Officer at Attomic Labs, puts forward three reasons for resisting any urge "to react legislatively to the apparent regulatory crisis". Firstly, she explains, "contrary to the general opinion, the Comcast decision does not uproot the Commission’s authority to regulate ISPs. Section 201(b) of the Act, which was cited as an argument by the Commission but not addressed by the Court on procedural grounds, could grant the Commission authority to regulate broadband Internet services where they render “charges, practices and regulations for, and in connection with” common carrier services unjust and unreasonable." Secondly, she suggests, it is "undesirable and premature to legislatively mandate network neutrality or for the Commission to adopt a paternalistic approach on the issue...[as] there have been few overt incidents to date, and the costs of those incidents to consumers have been limited." She cites "prompt media attention and public backlash" as effective policing tools to prevent ISPs from throttling traffic. She suggests that it "would be more prudent to consider introducing modest consumer protection rules, such as requiring ISPs to disclose their network management practices and to allow for consumers to switch ISPs inexpensively, rather than introducing network neutrality laws." Finally, she explains that while "by regulating broadband services the commission is not directly regulating content and applications on the Internet; however, to say that content will remain unaffected by the reclassification is inaccurate. The different layers of the Internet work in tandem with each other such that there is no possibility of throttling or improving one layer’s performance without impacting the other layers. If that was the case, then network neutrality would be maintained regardless of what happened at the transmission layer. To let the Commission regulate broadband pipelines connecting to the Internet and disregard that it indirectly involves regulating the data that runs through them will lead to a complex, overlapping, and fractured regulatory landscape in the years to come."
Pricing models
For over ten years ISPs, have offered unlimited data transfer at a specified maximum download/upload speed at a monthly rate. This pricing model helped ISPs to capture market share and quickly grow demand for high-speed internet access during the 1990s. Content providers or businesses could also purchase unlimited data transfer at a flat-rate, a practice that has become an industry standard.Some ISPs like AT&T and Verizon have argued that providing varying levels of service to websites at various prices could be a way to manage the costs of unused capacity. It will allow selling surplus bandwidth (or "leverage price discrimination
Price discrimination
Price discrimination or price differentiation exists when sales of identical goods or services are transacted at different prices from the same provider...
to recoup costs of 'consumer surplus'") by moving them to the content providers. However, purchasers of connectivity on the basis of Committed Information Rate
Committed Information Rate
Committed information rate or CIR in a Frame relay network is the average bandwidth for a virtual circuit guaranteed by an ISP to work under normal conditions. At any given time, the bandwidth should not fall below this committed figure...
or guaranteed bandwidth capacity must expect the capacity they purchase in order to meet their communications requirements.. This would effectively create a 'tiered' internet that will violate some conceptions of net neutrality.
Other ISPs are trying to move to usage-based pricing models. Time Warner Cable, attempted to introduce "consumption based billing" with caps on internet usage much like the model used in the mobile phone industry. They offered packages of 10GB, 20GB, 40GB, and 60GB with $1 overage charges capped at $75 a month. It was met with massive public disapproval and on April 16, 2009, Time Warner was forced to abandon their plan.
The industry is currently looking for alternative pricing models that will be accepted by the market.
Legal history
Originally, the Internet was not legally available for commercial use. It became available in the late 1980s.In the late 1990s and early 2000s, consumers and businesses began to attach new devices to their Internet connections, and use Internet services that were not in existence in the mid-1990s.
One reaction of many broadband operators was to impose various contractual limits on the activities of their subscribers. In the best known examples, Cox Cable disciplined users of virtual private network
Virtual private network
A virtual private network is a network that uses primarily public telecommunication infrastructure, such as the Internet, to provide remote offices or traveling users access to a central organizational network....
s (VPNs) and AT&T
AT&T
AT&T Inc. is an American multinational telecommunications corporation headquartered in Whitacre Tower, Dallas, Texas, United States. It is the largest provider of mobile telephony and fixed telephony in the United States, and is also a provider of broadband and subscription television services...
, as a cable operator, warned customers that using a Wi-Fi
Wi-Fi
Wi-Fi or Wifi, is a mechanism for wirelessly connecting electronic devices. A device enabled with Wi-Fi, such as a personal computer, video game console, smartphone, or digital audio player, can connect to the Internet via a wireless network access point. An access point has a range of about 20...
service for home-networking constituted "theft of service
Theft of services
Theft of services is the legal term for a crime which is committed when a person obtains valuable services — as opposed to goods — by deception, force, threat or other unlawful means, i.e., without lawfully compensating the provider of said services...
" and a federal crime. Comcast blocked ports of VPNs, forcing the state of Washington, for example, to contract with telecommunications providers to ensure that its employees had access to unimpeded broadband for telecommuting applications.
These early instances of "broadband discrimination" prompted both academic and government responses. In the early 2000s, legal scholars such as Tim Wu
Tim Wu
Tim Wu is a professor at Columbia Law School, the former chair of media reform group Free Press, and a writer for Slate Magazine. He is also a former Bernard L. Schwartz and Future Tense fellow at The New America Foundation...
and Lawrence Lessig
Lawrence Lessig
Lawrence "Larry" Lessig is an American academic and political activist. He is best known as a proponent of reduced legal restrictions on copyright, trademark, and radio frequency spectrum, particularly in technology applications, and he has called for state-based activism to promote substantive...
raised the issue of neutrality in a series of academic papers addressing regulatory frameworks for packet networks. Wu in particular noted that the Internet is structurally biased against voice and video applications.
Federal Communications Commission
Federal Communications Commission
The Federal Communications Commission is an independent agency of the United States government, created, Congressional statute , and with the majority of its commissioners appointed by the current President. The FCC works towards six goals in the areas of broadband, competition, the spectrum, the...
Chairman Michael Powell in 2004 announced a new set of non-discrimination principles, which he called the principles of "Network Freedom." In a speech at the Silicon Flatirons Symposium in February 2004, Powell stated that consumers must have the following four freedoms:
- Freedom to access content.
- Freedom to run applications.
- Freedom to attach devices.
- Freedom to obtain service plan information.
As remarked upon by David Isenberg, Chairman Kevin Martin later modified these four freedoms to read:
- Consumers are entitled to access the lawful Internet content of their choice;
- Consumers are entitled to run applications and services of their choice, subject to the needs of law enforcement;
- Consumers are entitled to connect their choice of legal devices that do not harm the network; and
- Consumers are entitled to competition among network providers, application and service providers, and content providers.
On August 5, 2005, the FCC adopted a policy statement stating its adherence to these principles.
Under pressure from the FCC and consumer groups, the broadband operators generally relaxed their most glaring restrictions on network usage.
In early 2005, in the Madison River case, the FCC for the first time showed a willingness to enforce its network neutrality principles by opening an investigation about Madison River Communications, a local telephone carrier that was blocking voice over IP
Voice over IP
Voice over Internet Protocol is a family of technologies, methodologies, communication protocols, and transmission techniques for the delivery of voice communications and multimedia sessions over Internet Protocol networks, such as the Internet...
service. While it is often thought that the FCC fined Madison River Communications following the investigation, it did not. The investigation was closed before any formal factual or legal finding. Instead, there was a settlement in which the company agreed to stop discriminating against voice over IP traffic and to make a $15,000 payment to the US Treasury in exchange for the FCC dropping its inquiry. Since the FCC did not formally establish that Madison River Communications violated laws and regulation, the Madison River settlement does not create a formal precedent. Nevertheless, the FCC's action established that it would not sit idly by if other US operators discriminated against voice over IP traffic.
On 1 August 2008 the FCC formally voted 3-to-2 to uphold a complaint against Comcast
Comcast
Comcast Corporation is the largest cable operator, home Internet service provider, and fourth largest home telephone service provider in the United States, providing cable television, broadband Internet, and telephone service to both residential and commercial customers in 39 states and the...
, the largest cable company in the US, ruling that it had illegally inhibited users of its high-speed Internet service from using file-sharing software. The FCC imposed no fine, but required Comcast to end such blocking in the year 2008. Then-FCC chairman Kevin J. Martin said the order was meant to set a precedent that Internet providers, and indeed all communications companies, could not prevent customers from using their networks the way they see fit unless there is a good reason. In an interview Martin stated that “We are preserving the open character of the Internet” and “We are saying that network operators can’t block people from getting access to any content and any applications.” The case highlighted broader issues of whether new legislation is needed to force Internet providers to maintain network neutrality
Network neutrality
Network neutrality is a principle that advocates no restrictions by Internet service providers or governments on consumers' access to networks that participate in the Internet...
, i.e. treat all uses of their networks equally. The legal complaint against Comcast
Comcast
Comcast Corporation is the largest cable operator, home Internet service provider, and fourth largest home telephone service provider in the United States, providing cable television, broadband Internet, and telephone service to both residential and commercial customers in 39 states and the...
related to BitTorrent, software that is commonly used for downloading movies, television shows, music and software on the Internet.
As of April 6, 2010, the FCC’s 2008 cease and desist order against Comcast (due to Comcast’s efforts to slow, and stop BitTorrent transfers) has been denied. The U.S. Court of Appeals ruled that the FCC has no powers to regulate any Internet provider’s network, or the management of its practices: “[the FCC] ’has failed to tie its assertion’ of regulatory authority to an actual law enacted by Congress.”
Regulatory history of broadband
In the United States, broadbandBroadband
The term broadband refers to a telecommunications signal or device of greater bandwidth, in some sense, than another standard or usual signal or device . Different criteria for "broad" have been applied in different contexts and at different times...
services were historically regulated differently according to the technology by which they were carried. While cable Internet has always been classified by the FCC as an information service free of most regulation, DSL was once regulated as a telecommunications service
Telecommunications service
In telecommunication, the term telecommunications service has the following meanings:1. Any service provided by a telecommunication provider....
subject to unbundling requirements. As the two types of networks have increasingly provided the same services, it has become difficult to justify different sets of rules, leading to the question of which rules should apply to both.
Towards the end of 2004, the US legal system voided the rules requiring telephone operators to unbundle
Product bundling
Product bundling is a marketing strategy that involves offering several products for sale as one combined product. This strategy is very common in the software business , in the cable television industry Product bundling is a marketing strategy that involves offering several products for sale as...
certain parts of their networks at regulated prices, which had as a consequence the economic collapse of many competitors in access services
Competitive local exchange carrier
A competitive local exchange carrier , in the United States, is a telecommunications provider company competing with other, already established carriers ....
.
In the U.S., DSL and cable Internet
Cable internet
In telecommunications, cable Internet access, often shortened to cable Internet or simply cable, is a form of broadband Internet access that uses the cable television infrastructure. Like digital subscriber line and fiber to the premises services, cable Internet access provides network edge...
access were formerly regulated by the FCC according to different rules, but in 2005 the FCC re-classified DSL according to the more permissive cable rules which was the same year that the US Supreme Court in Brand X
National Cable & Telecommunications Association v. Brand X Internet Services
National Cable & Telecommunications Association et al. v. Brand X Internet Services et al., 545 U.S. 967 , is a case in which the United States Supreme Court declared 6-3 that a cable Internet provider is an "information service," and not a "telecommunications service" and as such competing...
upheld the classification of cable Internet
Internet
The Internet is a global system of interconnected computer networks that use the standard Internet protocol suite to serve billions of users worldwide...
access as an information service.
An additional regulatory complexity is that cable operators and telephone operators are competing beyond broadband Internet access: cable operators by providing telephone service, and telephone service providers by upgrading their networks with FTTX
FTTX
Fiber to the x is a generic term for any broadband network architecture using optical fiber to replace all or part of the usual metal local loop used for last mile telecommunications...
in order to provide enough bandwidth to support television services.
Advocates of network neutrality wish to re-classify both under the old rules for DSL, which require unbundling and several other restrictions.
Towards the end of 2009, FCC Chair Julius Genachowski
Julius Genachowski
Julius Genachowski is an American lawyer and businessman. He became Federal Communications Commission Chairman on June 29, 2009.-Education:Genachowski grew up in Great Neck, New York. He attended yeshiva and studied in Israel...
announced at the Brookings Institute a series of proposals that would prevent telecommunications, cable and wireless companies from blocking certain information on the Internet, for example, Skype
Skype
Skype is a software application that allows users to make voice and video calls and chat over the Internet. Calls to other users within the Skype service are free, while calls to both traditional landline telephones and mobile phones can be made for a fee using a debit-based user account system...
applications. Some in the industry, such as David Young of Verizon Communications
Verizon Communications
Verizon Communications Inc. is a global broadband and telecommunications company and a component of the Dow Jones Industrial Average...
, consider the proposal to be the first rules for the internet imposed by the U.S. government.
On December 21, 2010, the FCC voted on a set of net neutrality principles:
1. Transparency: Consumers and innovators have a right to know the basic performance characteristics of their Internet access and how their network is being managed;
2. No Blocking: This includes a right to send and receive lawful traffic. This prohibits the blocking of lawful content, apps, services and the connection of non-harmful devices to the network;
3. Level Playing Field: Consumers and innovators have a right to a level playing field. This means a ban on unreasonable content discrimination. There is no approval for so-called "pay for priority" arrangements involving fast lanes for some companies but not others;
4. Network Management: This is an allowance for broadband providers to engage in reasonable network management. These rules don't forbid providers from offering subscribers tiers of services or charging based on bandwidth consumed;
5. Mobile: The provisions adopted today do not apply as strongly to mobile devices, though some provisions do apply. Of those that do are the broadly applicable rules requiring transparency for mobile broadband providers and prohibiting them from blocking websites and certain competitive applications;
6. Vigilance: The order creates an Open Internet Advisory Committee to assist the Commission in monitoring the state of Internet openness and the effects of the rules.
These measure have been denounced by net neutrality advocates as a capitulation to telecommunication companies such as allowing them to discriminate on transmission speed for their profit, especially on mobile devices like the iPad
IPad
The iPad is a line of tablet computers designed, developed and marketed by Apple Inc., primarily as a platform for audio-visual media including books, periodicals, movies, music, games, and web content. The iPad was introduced on January 27, 2010 by Apple's then-CEO Steve Jobs. Its size and...
, while pro-business advocates, especially in the Republican Party, complain about any regulation of the internet at all.
State regulations
In the United StatesUnited States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
, New York has established net neutrality as a telecommunications standard (See 16 NYCRR Part 605).
Legal definition in AT&T/Bell South merger
The AT&T/Bell South merger agreement defines net neutrality as an agreement on the part of the broadband provider: "not to provide or to sell to Internet content, application or service providers ... any service that privileges, degrades or prioritizes any (data) packet transmitted over AT&T/BellSouth’s wireline broadband Internet access service based on its source, ownership or destination."Technical complications
Complicating the discussion is the practical reality that the Internet is a highly federated environment composed of thousands of carriers, many millions of content providers and more than a billion end users - consumers and businesses. Prioritizing packets is complicated even if both the content originator and the content consumer use the same carrier. It is much less reliable if the packets have to traverse multiple carrier networks, because the packet getting "premium" service while traversing network A may drop down to non-premium service levels in network B.Further, the discussion has been very U.S.-centric and very terrestrial-network centered, even though the Internet is inherently global and mobility is the fastest growing source of new demand.
The immediate debate over "neutrality" does not capture the many dimensions of this topic; for example, should voice packets get higher priority than packets carrying email? Or, should emergency services, mission-critical, or life-saving applications, such as tele-medicine, get priority over spam?
Alternatives to cable and DSL
Much of the push for network neutrality rules comes from the lack of competition in broadband services. For that reason, municipal wirelessMunicipal broadband
Municipal broadband deployments are broadband Internet access services provided either fully or partially by local governments. Common connection technologies include unlicensed wireless , licensed wireless , and fiber-optic...
and other wireless service providers are highly relevant to the debate. If successful, such services would provide a third type of broadband access with the potential to change the competitive landscape. For similar reasons, the feasibility of broadband over powerline services
Power line communication
Power line communication or power line carrier , also known as power line digital subscriber line , mains communication, power line telecom , power line networking , or broadband over power lines are systems for carrying data on a conductor also used for electric power transmission.A wide range...
is also important to the network neutrality issue. However, as of the Spring of 2006, deployments beyond cable and DSL service have created little new competition.
Cable companies, in response to this threat, have lobbied Congress for a federal preemption to ban states and municipalities from competing and thereby interfering with interstate commerce. However, there is current Supreme Court precedent for an exception to the Commerce Power
Commerce Clause
The Commerce Clause is an enumerated power listed in the United States Constitution . The clause states that the United States Congress shall have power "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." Courts and commentators have tended to...
of Congress for states as states going into business for their citizens.
It has been argued, however, that neither municipal wireless
Municipal broadband
Municipal broadband deployments are broadband Internet access services provided either fully or partially by local governments. Common connection technologies include unlicensed wireless , licensed wireless , and fiber-optic...
nor other technological solutions such as encryption
Encryption
In cryptography, encryption is the process of transforming information using an algorithm to make it unreadable to anyone except those possessing special knowledge, usually referred to as a key. The result of the process is encrypted information...
, onion routing
Onion routing
Onion routing is a technique for anonymous communication over a computer network. Messages are repeatedly encrypted and then sent through several network nodes called onion routers. Like someone unpeeling an onion, each onion router removes a layer of encryption to uncover routing instructions, and...
, or time-shifting
Time shifting
Time shifting is the recording of programming to a storage medium to be viewed or listened to at a time more convenient to the consumer. Typically, this refers to TV programming but can also refer to radio shows via podcasts....
DVR would be sufficient to render possible discrimination moot.
3GPP
3GPP
The 3rd Generation Partnership Project is a collaboration between groups of telecommunications associations, known as the Organizational Partners...
cellular networks provide a practical broadband alternative known as EVDO, which, along with WiMax
WiMAX
WiMAX is a communication technology for wirelessly delivering high-speed Internet service to large geographical areas. The 2005 WiMAX revision provided bit rates up to 40 Mbit/s with the 2011 update up to 1 Gbit/s for fixed stations...
, represents a fourth and fifth alternative. WiMax has been deployed in limited areas, and 3GPP in much wider ones.
External links
- Federal Communication Commission:"OpenInternet" website
- Internet Policy: Who's Pulling the Strings against network neutralityNetwork neutralityNetwork neutrality is a principle that advocates no restrictions by Internet service providers or governments on consumers' access to networks that participate in the Internet...
in the United States - A video on net neutrality
- Australian ISPs say net neutrality is an American problem
- Media Capitalism, the State and 21st Century Media Democracy Struggles - An interview with Robert McChesney
- Verizon & Google Enter Reported Deal for Tiered Internet Use, Is Net Neutrality in Jeopardy? - video report by Democracy Now!Democracy Now!Democracy Now! and its staff have received several journalism awards, including the Gracie Award from American Women in Radio & Television; the George Polk Award for its 1998 radio documentary Drilling and Killing: Chevron and Nigeria's Oil Dictatorship, on the Chevron Corporation and the deaths of...
- NNSquad The Network Neutrality Squad, an open-membership, open-source effort, enlisting the Internet's users to help keep the Internet's operations fair and unhindered from unreasonable restrictions
- Abandoning "Net Neutrality," FCC Chair Backs Two-Tiered Internet Fees - video report by Democracy Now!Democracy Now!Democracy Now! and its staff have received several journalism awards, including the Gracie Award from American Women in Radio & Television; the George Polk Award for its 1998 radio documentary Drilling and Killing: Chevron and Nigeria's Oil Dictatorship, on the Chevron Corporation and the deaths of...