Net neutrality in the United States

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Net neutrality in the United States has been an issue of regulatory and judicial contention among network users and access providers.[1] There is some degree of net neutrality in the United States, meaning that telecommunications companies rarely offer different rates to broadband and dial-up Internet consumers based on Internet-based content or service type.[citation needed] There are no clear legal restrictions against practices impeding net neutrality. 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[citation needed]. Advocates of net neutrality have sought to restrict such changes.[2]

In 2005 and 2006, corporations supporting both sides of the issue spent large amounts of money lobbying Congress.[3] 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 attempts to pass bills in Congress containing some net neutrality provisions have been made and failed (see below). Each of them sought to prohibit Internet service 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".[4] Other provisions common to the net neutrality discussion were included in the proposed legislative works.

The debate started in the U.S. and has extended internationally with distinct differences of the debate in Europe [5] or Asia.[citation needed] The discussion is terrestrial-network centered, even though the Internet is inherently global and mobility is the fastest growing source of new demand.[citation needed]In practice, net neutrality is also influenced by state level politics.[6]

History of the concept[edit]

While the term is new, the ideas underlying net neutrality have a long pedigree in telecommunications practice and regulation. The concept of network neutrality originated in the age of the telegram in 1860 or even earlier, where standard (pre-overnight telegram) telegrams were routed 'equally' without discerning 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 or PSTN) are considered common carriers under U.S. law, which means that they are akin to public utilities and expressly forbidden to give preferential treatment. They are regulated by the Federal Communications Commission (FCC) in order to ensure fair pricing and access.

The Internet became legally available for commercial use in the late 1980s. It was not until the late 1990s and early 2000s, that consumers and businesses began to attach new devices to their Internet connections, and use Internet services that were not in existence prior.

Arguments about the public interest requirements of the telecommunications industry in the U.S. arose in the 1980s; whether companies involved in broadcasting are best viewed as community trustees, with obligations to society and consumers, or mere market participants with obligations only to their shareholders.[7] The legal debate about net neutrality regulations of the 2000s echoes this debate.

In the 1990s, some U.S. politicians began to express concern over protecting the Internet:

How can government ensure that the nascent Internet will permit everyone to be able to compete with everyone else for the opportunity to provide any service to all willing customers? Next, how can we ensure that this new marketplace reaches the entire nation? And then how can we ensure that it fulfills the enormous promise of education, economic growth and job creation?

Al Gore, 1994, [8]

Cable modem Internet access and high-speed data links, which make up the Internet's core, had always been categorized under U.S. law as an information service, unlike Internet access by phone, and not as a telecommunications service, and thus have not been subject to common carrier regulations, as upheld in National Cable & Telecommunications Association v. Brand X Internet Services.

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.

History 2004-2012[edit]

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 caused the economic collapse of many competitors in access services.[citation needed]

In February 2004 then Federal Communications Commission Chairman Michael Powell announced a set of non-discrimination principles, which he called the principles of "Network Freedom." In a speech at the Silicon Flatirons Symposium, Powell stated that consumers must have the following four freedoms:

  1. Freedom to access content.
  2. Freedom to run applications.
  3. Freedom to attach devices.
  4. Freedom to obtain service plan information.[9]

In early 2005, in the Madison River case, the FCC for the first time showed 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.

In the United States, broadband 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 regulated as a telecommunications service. In 2005, the FCC reclassified internet access across the phone network, including DSL, as "information service" relaxing the common carrier regulations and unbundling requirement to a voluntary set of four net neutrality principles.[10] implementation of the principles was not mandatory, would require an FCC rule or federal law.[11]

As remarked upon by blogger David Isenberg,[12] FCC Chairman Kevin Martin later modified these four freedoms to read:

  1. Consumers are entitled to access the lawful Internet content of their choice;
  2. Consumers are entitled to run applications and services of their choice, subject to the needs of law enforcement;
  3. Consumers are entitled to connect their choice of legal devices that do not harm the network; and
  4. Consumers are entitled to competition among network providers, application and service providers, and content providers.

The principles sparked a debate over whether or not Internet service providers should also be allowed to discriminate.[citation needed]

In November 2005 Edward Whitacre, Jr., 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,"[13] sparking a furious debate. SBC spokesman Michael Balmoris said that Whitacre was misinterpreted and his comments only referred to new tiered services.[14]

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 networks (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.[15] 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. Other broadband providers proposed to start charging service/content providers in return for higher levels of service (higher network priority, faster or more predictable), 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, accelerated or more reliable handling of selected packets.[citation needed]

The FCC rules do not prevent telecommunications companies from charging fees to certain content providers in exchange for preferential treatment. 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.[16] Under pressure from the FCC and consumer groups, the broadband operators generally relaxed their most glaring restrictions on network usage.

In June 2006, the Senate Commerce Committee approved the Telecommunications and Opportunities Reform Act, which entailed guidelines combating discrimination, detailed broadband consumer rights with nondiscriminatory language urged by net neutrality advocates, thought to be a compromise between the ever-battling net neutrality campaigns and instituted parameters regarding the actions taken by broadcasters and various media players[citation needed], but it failed to pass both houses.[17]

In June 2007, the United States Federal Trade Commission (FTC) urged restraint with respect to new regulations proposed by net 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."[18] In turn, the FTC conclusions have been questioned in Congress 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.[19]

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.[20] On March 27, 2008, Comcast and BitTorrent reached an agreement to work together on network traffic.[21] 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 US$16 million, admitting no wrongdoing[22] and amounting to no more than US$ 16 dollars per share.[23]

In January 2008, Time Warner Cable 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; Time Warner launched the pricing system in several markets including Rochester, NY, Beaumont, TX and Austin, TX, followed by public outcry. Early April, it announced offering larger packages, but with continued dissatisfaction, it abandoned the plan altogether mid April.[citation needed]

In February 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.[24]

In August 2008, the FCC made its first Internet network management decision.[25] It 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 because it throttled the bandwidth available to certain customers for video files to ensure that other customers had adequate bandwidth.[26][27] The FCC imposed no fine, but required Comcast to end such blocking in the year 2008, 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. 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 was related to BitTorrent, software that is commonly used for downloading movies, television shows, music and software on the Internet.[28]

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.[29]

As of April 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.”[30]

In June 2010, the United States Court of Appeal for the District of Columbia in Comcast Corp. v. FCC overturned the FCC's Order against Comcast ruling that the FCC lacked the authority, under the ancillary statutory authority of Title One of the Communications Act of 1934, to force Internet service providers to keep their networks open, while employing reasonable network management practices, to all forms of legal content.[31] The FCC had announced earlier it would continue its fight for net neutrality.[32]

In December 2010, the FCC approved the FCC Open Internet Order banning cable television and telephone service providers from preventing access to competitors or certain web sites such as Netflix.

On December 21, 2010, the FCC voted on and passed a set of 6 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.[33]

The rule did not keep ISPs from charging more for faster access. These measure were 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 complained about any regulation of the internet at all. Republicans in Congress announced to reverse the rule through legislation.[34][35]

In April 2012, the CEO of Netflix criticized Comcast for not "following net neutrality principles". Netflix charged that Comcast was restricting access to popular online video sites, in order to promote Comcast's own Xfinity TV service. The criticism followed similar comments from Washington, D.C-based consumer group Free Press, which said that Comcast's policies gave "Comcast product an unfair advantage against other Internet video services".[36]

In September 2012, a group of public interest organizations such as Free Press, "Public Knowledge" and the "New American Foundation’s Open Technology Institute" were preparing to file a complaint with the FCC that accuses AT&T of violating net-neutrality rules, by restricting use of the video- conferencing Apple application "FaceTime" to certain customers. The application which could be used over Wi-Fi signals can now be only used over cellular connection for customers who have a shared data plan on AT&T and excludes those with older unlimited or tiered data plans. Matt Wood, policy director of Free Press, said that "AT&T’s decision to block FaceTime unless a customer pays for voice and text minutes she doesn’t need is a clear violation of the F.C.C.’s Open Internet rules".[37]

Recent developments[edit]

On January 14, 2014, the DC Circuit Court determined in the case of Verizon v. Federal Communications Commission[38] that the FCC has no authority to enforce Network Neutrality rules, since service providers are not identified as "common carriers".[39] It did, however, agree that FCC has the ability to regulate broadband and may craft more specific rules that stop short of identifying service providers as common carriers, according to lobbyist group Public Knowledge.[40] The likelihood of this occurring under new FCC Chairman Tom Wheeler is low, as he has stated in the past that he is not opposed to providers receiving consideration to prioritize certain traffic.[41]


...supporting net neutrality[edit]

Organizations that support net neutrality come from widely varied political backgrounds and include groups such as, Free Press, Consumer Federation of America, AARP, American Library Association, Gun Owners of America, Public Knowledge, the Media Access Project, the Christian Coalition, and TechNet.[42][43][44] Tim Berners-Lee (the inventor of the World Wide Web) has also spoken out in favor of net neutrality.[45]

Not all net neutrality proponents emphasize transparency to customers, and most proponents do not phrase net neutrality in terms of existing telecom carrier restrictions even when the desired state is equivalent.[citation needed] 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 net neutrality and would return carriers to the conditions of limited liability that were in part breached by the 2005 FCC decision that DSL services are information services, and thus not subject to common carrier rules.[citation needed]

...opposing net neutrality[edit]

Opponents argue that (1) net neutrality regulations severely limit the Internet's usefulness; (2) net 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;[citation needed] (5) net neutrality would benefit industry lobbyists, and not consumers due to the potential of regulatory capture with policies that protect incumbent interests.[46]

Organizations opposing net neutrality are the free-market advocacy organizations FreedomWorks Foundation,[47]Americans for Prosperity and their website No Internet Takeover,[48] the National Black Chamber of Commerce, LULAC, the Competitive Enterprise Institute, the Progress and Freedom Foundation and high-tech trade groups, such as the National Association of Manufacturers.[citation needed] For example, former hedge fund manager turned journalist Andy Kessler has argued, the threat of eminent domain against the telecommunication providers, instead of new legislation, is the best approach by forcing competition and better services.[49] The Communications Workers of America, the largest union representing installers and maintainers of telecommunications infrastructure, opposes the regulations.

A number of net neutrality opponents have created a website called Hands Off The Internet[citation needed] 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.[50] [51] [52][53] Corporate astroturfing is alleged.[50] 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.[54]

Net 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.[citation needed]

Only few U.S. technology trade associations and the U.S. financial sector were neutral as of 2006.[55][citation needed]

FCC proposal 2010[edit]

An alternate position was proposed in 2010 by then-FCC Commissioner Julius Genachowski, which would narrowly reclassify internet access as a telecommunication service under Title Two of the Communications Act of 1934. It would apply only six [56] common carrier rules under the legal principle of forbearance that would sufficiently prevent unreasonable discrimination and mandate reasonable net neutrality policies under the concept of common carriage. Incumbent internet service provider AT&T opposed the idea saying that common carrier regulations would "cram today's broadband Internet access providers into an ill-fitting 20th century regulatory silo" while Google supported the FCC proposal "In particular, the Third Way will promote legal certainty and regulatory predictability to spur investment, ensure that the Commission can fulfill the tremendous promise of the National Broadband Plan, and make it possible for the Commission to protect and serve all broadband users, including through meaningful enforcement".[57]

Attempted legislation[edit]

Arguments associated with net neutrality regulations came into prominence in mid-2002, offered by the "High Tech Broadband Coalition", a group comprising the Business Software Alliance; the Consumer Electronics Association; the Information Technology Industry Council; the National Association of Manufacturers; the Semiconductor Industry Association; and the Telecommunications Industry Association, some of which were developers for, Google, and Microsoft. The full concept of "net neutrality" was developed by regulators and legal academics, most prominently law professors Tim Wu, Lawrence Lessig and Federal Communications Commission Chairman Michael Powell often while speaking at the Annual Digital Broadband Migration conference or writing within the pages of the Journal of Telecommunications and High Technology Law,[58] both of the University of Colorado School of Law.

By late 2005, net neutrality regulations were included in several Congressional draft bills, as a part of ongoing proposals to reform the Telecommunications Act of 1996} requiring Internet providers to allow consumers access to any application, content, or service. However, important exceptions have permitted providers to discriminate for security purposes, or to offer specialized services like "broadband video" service.[citation needed]

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—launched the 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, it delivered over 1,000,000 signatures to Congress in favor of net neutrality policies and by the end of 2006, it had collected more than 1.5 million signatures.[citation needed]

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 net 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[59][60] S. 2360 March 2, 2006 Senator Ron Wyden (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 Bill of 2006[61][62] H.R. 5252 March 30, 2006 Representative Joe Barton (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. Passed 321-101 by the full House of Representatives on June 8, 2006- but with the Network Neutrality provisions of the Markey Amendment removed. Bill killed by end of 109th Congress.[63]
Network Neutrality Act of 2006[64] H.R. 5273 April 3, 2006 Representative Ed Markey (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.[65]
Communications Opportunity, Promotion and Enhancement Bill of 2006[66] S. 2686 May 1, 2006 Senators Ted Stevens (R-Alaska) & Daniel Inouye (D-Hawaii) Aims to amend the Communications Act of 1934 and addresses net neutrality by directing the Federal Communications Commission (FCC) to conduct a study of abusive business practices predicted by the Save the Internet coalition and similar groups. Sent to Senate in a 15-7 committee vote and defeated by the Senate Committee on Commerce, Science, & Transportation on June 28, 2006. Killed by the end of 109th Congress.
Internet Freedom and Nondiscrimination Act of 2006[67] H.R. 5417 May 18, 2006 Representatives Jim Sensenbrenner (R-Wisconsin) & John Conyers (D-Michigan) Makes it a violation of the Clayton Antitrust Act 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 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)[68] S. 215 (110th Congress) formerly S. 2917 (109th Congress) January 9, 2007 Senators Olympia Snowe (R-Maine) & Byron Dorgan (D-North Dakota), Co-Sponsors: Barack Obama (D-Illinois), Hillary Clinton (D-New York), John Kerry (D-Massachusetts) and other Senators Amends the Communications Act of 1934. Introduces a ban on the blocking/degradation of lawful content, forbids tying Internet access to purchase further services, and a ban on QoS deals between network providers and specific content providers but still allows prioritizing content that originates 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[69] H.R.3458 February 12, 2008 Representatives Edward Markey (D-Massachusetts) & Charles Pickering (R-Mississippi) To establish broadband policy and direct the Federal Communications Commission 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
112th Congress of the United States (January 2011 – January 2013)
Data Cap Integrity Act of 2012[70] S. 3703 December 20, 2012 Senator Ron Wyden (D-Oregon) To improve the ability of consumers to control their digital data usage, promote Internet use, and for other purposes. Read twice and referred to the Committee on Commerce, Science, and Transportation.
(D) = a member of the House or Senate Democratic Caucus; (R) = a member of the House or Senate Republican Conference

In 2006 Congressman Adam Schiff (D-California), one of the Democrats who voted for the 2006 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."[71]

No new bills regulating net neutrality were introduced in the 111th Congress; In 2009 House Representative Markey (D) reintroduced a net neutrality bill.[72] It excludes reasonable network management from regulation, but because it doesn't contain technical specifications to describe "reasonable network management" schemes, it remains unclear what degree of autonomy network operators would have in managing traffic.[73]

Net neutrality bills are referred to the Senate Committee on Commerce, Science, and Transportation, whose Committee Chair until 2014, Jay Rockefeller (D-W.Va.) has expressed caution about introducing unnecessary legislation that could tamper with market forces.[citation needed]

Opinions cautioning against legislation[edit]

In 2006 Bram Cohen, the creator of BitTorrent, said "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."[74]

In 2008 The Wall Street Journal argued: "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."[75] 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,[73] 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.

In 2010 Adam Thierer, a George Mason University fellow opined 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."[46]

In 2011 Aparna Watal, a legal officer at an internet company named Attomic Labs, has put forward three points for resisting any urge "to react legislatively to the apparent regulatory crisis".[76] Firstly, "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."[76] 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." [77] 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."[77] "While by regulating broadband services the commission is not directly regulating content and applications on the Internet", content will be affected by the reclassification. "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.... 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."[77]

Pricing models[edit]

ISPs had 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.[citation needed]

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.[citation needed]. 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.

State regulations[edit]

In the United States, as of 2012 only New York has established net neutrality as a telecommunications standard (See 16 NYCRR Part 605).[citation needed]

Legal definition in AT&T/Bell South merger[edit]

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." [78]

Unresolved issues[edit]

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.[citation needed] 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.[citation needed]

The debate over "neutrality" does not yet capture some dimensions of the topic; for example, if voice packets should get higher priority than packets carrying email or if emergency services, mission-critical, or life-saving applications, such as tele-medicine, should get priority over spam.[79]

Alternatives to cable and DSL[edit]

Much of the push for network neutrality rules comes from the lack of competition in broadband services. For that reason, municipal wireless 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 spring of 2006, deployments beyond cable and DSL service have created little new competition.[citation needed]

Cable companies, in response 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, 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.[80]

3GPP cellular networks provide a practical broadband alternative known as EVDO, which, along with WiMax, represents a fourth and fifth alternative. The latter has been deployed in limited areas, but 3GPP in much wider ones.

See also[edit]


  1. ^ Wyatt, Edward (2011-04-08). "House Votes Against 'Net Neutrality'". New York Times. Retrieved 2011-09-23. 
  2. ^ Kang, Cecilia (2010-12-22). "FCC Approves Net-Neutrality Rules; Criticism is Immediate". The Washington Post. Retrieved 2011-09-23. 
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