Yemi A. Adegbonmire writes: Net neutrality is the principle that all users can access any Internet content of their choosing. This is how you currently experience the Internet. On a non-neutral Internet, however, the Internet service provider (ISP) picks and chooses the content to which one has access. This may be based on any number of factors from download speed to file size.
In a decision that may send the issue either to the U.S. Supreme Court, or back to Congress for an expansion of the Federal Communications Commission's (FCC) jurisdiction, last week, a three-judge panel from the D.C. Circuit of the U.S. Court of Appeals unanimously ruled in Comcast v. FCC that the FCC lacked the authority to regulate an ISP’s network management practices. The court's ruling overturns a 2009 FCC ruling against the Comcast Corporation in which the agency concluded that it had such jurisdiction over Comcast. With Comcast and NBC Universal set to merge in the coming months, this ruling has untold implications on net neutrality and Internet commerce.
At issue was Comcast's peer-to-peer (P2P) data management system, which limited or disabled the transfer of high-density protocols like Bit Torrents in favor of protocols that consumed less bandwidth. The agency ruled that Comcast's interference with customer's P2P service was discriminatory and contrary to the FCC's Internet policy statement that "consumers are entitled to access the lawful Internet content of their choice...[and] to run applications and use services of their choice." Comcast redesigned its data management protocols and appealed the decision for clarity on the FCC's authority to issue and enforce the prohibition.
Citing the FCC's own admission that the agency has no "express" authority to regulate an ISP's network management practices, the court found that while the agency has "ancillary" authority under the Telecommunications Act of 1934 to perform "any and all acts...as may be necessary in the execution of its functions" the agency overreached its authority. Specifically, the court reaffirmed that Internet service is distinguishable from television and telecommunication services which are expressly, statutorily relegated to the FCC. Interestingly enough, although television and telecommunications are offered over the Internet, Internet services are classified as a less regulated information service. Moreover, while there are several congressional statements emphasizing net neutrality as a policy goal, Congress has yet to act. Therefore, the court concluded, net neutrality has neither the force of law nor regulations and thus cannot be enforced by the FCC as though a "statutorily mandated" responsibility.
The ruling is significant because it separates the regulatory implications of delivering a telecommunications service compared to an information service. In early 2009, the FCC issued another letter to Comcast criticizing the telecom giant for prioritizing calls made using Comcast's internet phone service (VoIP) ahead of calls made using other VoIP services selected by Comcast's broadband subscribers. The court's new ruling makes it unlikely that the agency can enforce its posture without an act of Congress. This move away from an expansive view of the FCC's mandate with respect to information services should raise some concerns for broadband consumers, search engines, and Internet entrepreneurs.
ISPs such as Comcast and AT&T oppose preserving the Internet as a single, neutral pipeline and, instead, wish to bifurcate or multitier the Internet pipeline into lanes based not on broadband access/speed (as it is now) but rather on content (much like cable). This takes power out of the hands of consumers. For example, one's current access to the Internet is dependent on speed and geography. A users computer equipment and access to broadband service (versus dial-up service) control speed. Once on the Internet, however, a consumer can access all content. A non-neutral Internet is one in which a consumer's access to information is controlled by the ISP and subject to the ISP’s price and aggregation choices. This model may have benefits for entertainment properties trafficked on the Internet, but those benefits may only go to a few since Comcast, the nations largest cable provider, is poised to acquire NBC Universal in an environment where ISPs can discriminate against content. A discriminatory Internet may also prove dubious if it creates a cultural and educational divide. Several issues come to mind. Will news organizations also see their way to the Internet lanes with the highest subscriber fees or most desirable bundles? What happens in a society when the information pipeline is no longer accessible to citizens on an equal basis? What happens to advertising and media when the viral market is no longer neutral?
The Internet’s promise is not fully realized. In fact, in February of this year the FCC released the results of its study on broadband adoption and use in America. The study revealed that 35% (over 90 million) Americans lack broadband Internet access. The Obama Administration and the FCC are undertaking the tasks of developing both a universal broadband strategy and promulgating net neutrality regulations. The courts posture on the FCC's regulatory mandate return the net neutrality issue to Congress where at least one bill has been introduced to oppose it. Building the Internet's infrastructure to its full potential requires weighing the competitive, educational, social, and opportunity costs. This issue is much broader than whose movie or phone call gets priority on an ISP's server.