Will the Net Stay Neutral?

POST WRITTEN BY: Sharleen Bailon (Executive Articles Editors ’16), J.D. Pace Law School

netNeutrality 4 dummies

For the public, the ideal situation is free and fast access to the Internet. On the opposite end, the big Internet Service Providers (hereinafter ISP), such as Comcast and Verizon, would prefer to charge everyone for everything connected to Internet services they provide. One example is charging for speed and accessibility. If you are a big company with the ability to pay for faster speed, then you can reach more users. Commission Document Verizon v. FCC, No. 11-1355 (D.C. Cir.), Federal Communications Commission (February 7, 2013), Conversely, the start-up sole proprietor would be limited to what he or she could afford. Id.

The government believed that ISPs would implement additional costs to their users. But the problems the public could encounter are not limited to increasing or additional costs. Essentially, ISPs could pick and choose which ads or websites users could access and which ones they would block. Daniel J. Wityk, Like A Good Neighbor A State Farm Solution to the Fcc’s Net Neutrality Limbo, 78 Brook. L. Rev. 1587, 1616 (2013)

In Hart v. Comcast of Alameda, the plaintiff’s complaint stated that Comcast’s “Internet management practices with respect to “peer to peer” (“P2P”) file sharing applications are unlawful, and unfairly discriminate against P2P applications.” No. C076350 PJH, 2008 WL 2610787, at *1 (N.D. Cal. June 25, 2008).

The Internet’s potential of raking in more profits for ISPs at the expense of the free flow of information allows “FCC to crack the Tittle II whip…[because] the ISP’s [are] acting like greedy petulant children”. Tom Bradley, Net Neutrality Didn’t Have To Come to This, Forbes (March 24, 2015). Thus, in 2010 the FCC submitted, for approval, new rules protecting net neutrality and by December 2010, the rule was finalized. In the Matter of Preserving the Open Internet Broadband Indus. Practices, 25 F.C.C. Rcd. 17905 (2010) (hereinafter Open Internet). In this rule, “internet service providers could not block websites or impose limits on users.” The White House, Net Neutrality, President Obama’s Plan for a Free and Open Internet, (last visited March 25, 2014). Unfortunately, this rule was struck down.

Verizon was not happy with the FCC’s new rule and challenged it in court. Andrew Zajac and Todd Shields, Verizon Wins Net Neutrality Court Ruling Against FCC, Bloomberg (January 14, 2014). In Verizon v. F.C.C., Verizon argued that FCC lacked statutory authority in implementing Open Internet. 740 F.3d 623, 634 (D.C. Cir. 2014). The D.C Circuit ruled for Verizon because Verizon and other ISPs are not considered “common carriers.” Verizon, 740 F.3d at 642. In the statute, the common carrier that provides basic services category is the only category FCC could monitor and regulate regarding discriminatory and blocking practices. Id.

The statutory authority in question is the Telecommunications Act of 1996, which gave FCC the power to regulate some, but not all, communication services. Verizon, 740 F.3d at 628. To determine what could be regulated, the Act divides these services into two categories: telecommunications carriers (basic services) information-service providers (enhanced services) Id. at 630. The public disagreed with the D.C. Circuits decision and used the Internet as a platform to reverse that outcome.

Fast-forward to February 2015, the F.C.C. approved the new Net Neutrality proposal and it is waiting to get published in the Federal Register making it official. Mike Snider et. al., What is net neutrality and what does it mean for me?, USA Today (February 24, 2015), But the big ISPs will not let it pass without a fight.

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