Net Neutrality and Legal Challenges

The concept of net neutrality has long been a hot button topic in internet law, and at its core is the principle that internet service providers (ISPs) and governments should not be able to restrict consumers’ access to networks which participate in the internet. This principle is the subject of much debate as it is the opposition of two different types of freedoms: the freedom of property rights, which would allow ISPs to determine what content can be viewed on their networks and at what speeds, and the freedom of expression on the part of individual users connecting to the internet using the broadband networks created by ISPs.

FCC Standing

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The Federal Communications Commission (FCC) has long asserted its jurisdiction in this matter and, in 2005, issued a policy statement in which it outlined the following four principles meant to “ensure that broadband networks are widely deployed, open, affordable, and accessible to all consumers:”

  • Consumers are able to see and use any content on the internet that is legally available
  • Consumers are allowed to make use of internet services and run applications, depending on law enforcement needs
  • As long as they cause no harm to the network which they are using, consumers can connect any legal technical devices the network
  • Consumers should have competition between providers of network, application and service, and content.

Following this policy statement, a 2007 complaint was brought against Comcast for interfering with its users’ peer to peer networking applications, and the FCC ultimately claimed authority to impose sanctions on Comcast under the Communications Act of 1934. The sanctions were complied with and appealed, and ultimately the D.C. Circuit Court of Appeals held that the FCC did not have constitutional or sufficient statutory authority to enforce its policy statement.

Following this ruling and a vast amount of development and compromise, the FCC issued an order for “Preserving the Open Internet Broadband Industry Practices” which established the refined and simplified rules imposed upon ISPs, continuing to assert its power under the Communications Act of 1934 to regulate broadband network operators. The rules are defined as follows:

  • Internet service providers, be they wired or wireless, must create transparency by releasing their network management procedures and performance characteristics
  • ISPs are prohibited from blocking any lawful content on the internet. Fixed broadband network providers cannot block any lawful content, services, applications or devices. Wireless providers may not block web sites.
  • Fixed broadband network providers are prohibited from unreasonable discrimination against network traffic.

These rules have been challenged by Verizon and MetroPCS, on the content of the rules themselves and further challenges to the FCCs authority in the matter. According to Aaron Kelley, an internet lawyer who has knowledge on this matter, the companies filed a joint brief in July of 2012 entitled Verizon v. Federal Communications Commission, which has the FCC has until September of 2012 to reply to. The legal debate between the two viewpoints remains open and pliable at this point, but as cases progress against the FCC our understanding of the balance between the rights of ISPs and those of consumers promises to grow clearer.