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Net Neutrality: Why the debate is anything but neutral and why you should care

Posted by attorney Aaron Kelly

What Is Net Neutrality?

From its inception, the promise of the Internet has been parity. The Internet is fundamentally democratic, its most idealistic users tell us: It does not discriminate between packets of information. The Internet allows you to access the website of that tiny independent bookstore around the corner just as quickly as you access; it does not filter out access to digital forums where unpopular ideas or opinions are expressed; it does not transmit MSNBC content any more efficiently than it relays content from Fox News.

The doctrine behind this functionality is called net neutrality. Simply put, net neutrality means that the connectivity infrastructure – the servers, Internet service providers (ISPs) and transmission lines that make up the Internet’s backbone – must provide the same level of connectivity to all its users.

The principle of net neutrality has become so much a part of our notion of what the Internet is that most Internet users never question it. Yet net neutrality is not enforced by law, and in September, 2010 the Federal Communications Commission (FCC) – the body charged with overseeing the Internet in the United States – abruptly called off talks that aimed to get the big players in the Internet arena to sign off on enforceable net neutrality rules.

Proponents of net neutrality maintain that unless the unwritten law is codified into a federal law or regulation, the big telecom companies who provide Internet connectivity will try to impose tiered service models on Internet users, similar to those used by wireless companies in the early days of cell phones, that will create artificial scarcity in the pipeline as a way to weed out competition, ultimately ensuring their monopolistic control of the Internet.

Critics of net neutrality argue that there’s no manipulation going on: Pipeline capacity is limited, and that unless some kind of incentive is offered to the companies that are spending billions upon billions of dollars to extend broadband’s reach and improve its speed, those companies may decide that investment is not worth it and stop spending. When in 2009, Arizona Senator John McCain introduced legislation designed to prevent the FCC from imposing its rules on ISPs, he stated that by stifling innovation, net neutrality would slow the economic recovery, depressing a weak job market even further.

Comcast and Net Neutrality

The Comcast corporation is the largest provider of home Internet services in the United States, as well as the largest cable TV operator and the third-largest telephone provider. Comcast currently provides high-speed Internet services to close to 16 million subscribers.

In October 2008, Comcast updated its terms of service to reflect what had long been rumored to be an unofficial company policy: customers who used an excessive amount of bandwidth – defined by Comcast in August 2008 as 250 GB or more per month – were subject to termination. To combat this excessive use, Comcast had been decelerating downloads through the BitTorrent service, deployed primarily by users to gain access to illegally distributed music and movies. Comcast’s behavior was only partly a blow struck on behalf of defenders of intellectual copyright. Mostly Comcast had imposed its BitTorrent embargo because the BitTorrent downloads were slowing the rest of the pipeline traffic to a crawl.

In effect, Comcast’s decision to slow down BitTorrent transmissions was an act that placed a higher priority on non-BitTorrent content than it placed on BitTorrent content. In other words, it violated the basic tenet of net neutrality.

Nonprofit Internet watchdog groups like Open Internet Coalition quickly got into the fray. So did the FCC which reprimanded the cable-broadcasting giant publicly, and instituted proceedings against the company.

Then as now, however, adherence to net neutrality rules is purely voluntary since net neutrality is nowhere codified into law or even formalized as part of a standard of professional conduct. Comcast sued the FCC, and in March, 2010 a federal appeals court granted Comcast’s petition for review, vacating the FCC’s 2007 order.

Was this a blow against net neutrality? Probably not: the court decision did not address the concept of net neutrality itself, but focused on the FCC’s legal authority to enforce net neutrality. The FCC had long assumed that Title I of the 1996 Telecommunications Act gave it jurisdiction in this area, but the court did not agree.

Since the court’s ruling was made, the FCC has continued to advocate strongly for net neutrality while it searches for a way to establish jurisdiction over broadband services. FCC chairman Julius Genachowski, an Obama appointee, maintains that the FCC’s jurisdiction can be re-established through Title II of the Telecommunications Act. Meanwhile the FCC continues to meet with ISP lobbyists and representatives from companies like Google, Skype and Facebook to hammer together a consensus on how the agency should regulate broadband Internet service and where net neutrality fits into the picture.

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