Broadband Discrimination & Network Neutrality. Chelsea Hogan BRC 301 Professor Mejias Final Paper

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1 Broadband Discrimination & Network Neutrality Chelsea Hogan BRC 301 Professor Mejias Final Paper 1

2 The advent of the Internet caused a major change in the way that Americans approach the media. The Internet was the first place where such a wealth and overload of information was accessible to the surfer with only a click of a few buttons. The FCC (Federal Communications Commission), the independent and administrative agency responsible for the creation of rules, regulation, orders and decisions that form administrative law, has a chief responsibility that includes the regulation of the electromagnetic spectrum. The spectrum includes technologies such as radio, television, and cable, however, it doesn t include the regulation of the Internet (Trager, Russomano, Ross, 2010). One of the biggest issues to envelop the media industry that further brings the FCC s inability to regulate the Internet to a forefront is the idea of Network Neutrality. Network Neutrality can be depicted as the guiding principle that preserves the free and open Internet (Save The Internet, 2010). The FCC is currently rallying behind this principle while the opposition, whom are the largest telephone and cable companies, are in favor of charging consumers for smooth and easy access to Internet websites, speed to run the applications, as well as obtaining permission to plug in devices (Save The Internet, 2010). It is absolutely vital that the FCC obtains the right to impose some form of regulation of the Internet from Congress to ensure that these network giants will not impose a policy that promotes discrimination of content for all Internet 2

3 consumers. I will discuss at length the principles behind the concept of Network Neutrality, the opponent and proponent viewpoints, the FCC s fight to enforce this policy, and the colossal impact that Network Neutrality has on the economy, media, and Internet consumers alike. The introduction of Net Neutrality has dated back to September 2005, when the FCC unanimously voted to classify the Internet as an information service that is subject to regulation under powers previously bestowed to them by Congress (Wyatt, 2010). That same year, the FCC issued its Broadband Policy Statement, which adopted four principles that preserve a free and open Internet: access to lawful content of their choice, run applications and services of their choice subject to the needs of law enforcement, connect their choice of legal devices that do not harm the network, and competition between networks, application, service, and content providers ( Net Neutrality, 2010). However, the concept of network neutrality stems from a similar piece of legislation outlined in the Communications Act of 1934, which forbade telephone companies from playing favorites in order to protect the consumers (Public Knowledge, 2010). The fundamental idea behind this policy proposes Internet Service Providers (ISPs) may not discriminate between different kinds of content and applications online (Save the Internet, 2010). This principle guarantees a sense of fair and equal treatment for all sources of data and a level of playing field for all Internet technologies. (Save The Internet, 2010). The premise behind Net Neutrality represents the part of a movement to deregulate the Internet services provided by telephone companies ( Net Neutrality, 2010). Currently, all Internet users are able to access any website on an equal basis; regardless of site you are trying to gain access to, it all shows up on the user s screen in 3

4 the same way when their address is typed into the browser. The FCC is in favor of having the Internet remain this way, continuing to provide its users with an open medium. However, some of the large cable and telecommunication companies would like to eradicate this current operation and shift towards a new infrastructure; a two-tiered Internet with a fast and a slow lane ( Net Neutrality, 2010). These network giants who serve as ISPs believe that they should be able to charge Websites, device manufacturers, and applications providers for the right to use of their network (Save The Internet, 2010). The intent of these companies to charge these extra fees is to increase innovation towards a market-driven industry (Wu, 2003). Those who do not propose a deal and pay these companies will ultimately suffer discrimination; their pages will load at a much slower speed, and their devices and applications won t work as well. For those companies who do pay, however, will experience preferential treatment. If this proposition were to take effect, these network operators could even block the website of a competitor, or slow down the connection speed to access these pages the point where it is unusable (Save The Internet, 2010). There are several proponents that are rallying behind the idea of Network Neutrality including consumer advocates, online companies and some technology companies. Advocates of this policy believe that this is how the Internet should remain, open and free to all it s users, and that broadband carriers should not be allowed to use the power of their market to discriminate against competing applications or content. Allowing ISPs to dictate and control what consumers see and do online undercuts the principles that have made the Internet such a huge success. The Internet, since the beginning of its existence, has served as an open medium for all. The proponent s biggest 4

5 fear is that without Network Neutrality, the Internet will start to resemble some of the same characteristics as cable TV; a handful of companies possessing the capabilities to control access and distribution of content, determining what you get to see and charging a particular price for it (Wikipedia, 2010). Supporters are also seeking to obtain a legal mandate to ensure cable companies allow Internet Service Providers free access to their cable lines, which is called a common carrier agreement. They want to ensure that cable cannot screen, filter or interrupt Internet content without a court order (Wikipedia, 2010, par. 14). Broadband carriers believe that a deviation from the concept of Network Neutrality is necessary in order to manage their networks as they see fit, as well as to generate the revenue needed in order to expand them ( Net Neutrality, 2010). They have also opposed this idea because they desire the freedom to discriminate. Proponents don t object to the idea of the cable and telecommunications companies gaining a profit, however; their monetary gains should not be generated at the expense of the principle of an open Internet, which has allowed the Internet to expand and develop into what it is today, an innovation without permission medium (Public Knowledge, 2010). The biggest difficulty when it comes to the issue of Network Neutrality is the regulation of the Internet. Since the FCC does not have the granted authority by the government to control this medium, it poses a challenge for the commission to actually impose this policy (Van Schewick, 2010). However, this has not hindered their efforts to fight for the cause. In September 2009, the commission s chair, Julius Genachownski, proposed two more additional rules on top of their 2005 Broadband Policy Statement; the nondiscrimination principle that ISPs must not discriminate against any content or 5

6 applications, and the transparency principle, which requires that ISPs disclose all their policies to customers (Wikipedia, 2010, par. 14). Genachowski also argued that wireless and wire-line providers should both be subjected to the same kind of network neutrality. Shortly after, in October 2009, they took their plan even further by approving a Notice of Proposed Rulemaking on the issue of Net Neutrality (Wikipedia, 2010). This notice involves the right of companies and citizens of the public that are affected by FCC s consideration to change regulation or adopt new rules to submit comment and replies regarding whether or not they are in favor of the FCC s proposal (Trager, Russomano, Ross, 2010). The FCC efforts to enforce Network Neutrality has been challenged to an even higher extent due to their defeat in federal court against ComCast in The FCC filed a suit against the Internet provider ComCast because the company was using spoofing technology to interrupt peer-to-peer network applications and traffic, which the commission felt was an infraction of AT&T/BellSouth principles. ComCast overturned the FCC s ruling, and eventually was victorious (Public Knowledge, 2010). The ruling from the United States Court of Appeals for the District of Columbia said that the FCC lacked the authority to require broadband service providers to give equal treatment to all Internet traffic flowing over their network ( Net Neutrality, 2010, par. 6). This victory was monumental for ComCast being that it is the nation s largest cable company, but posed as a huge devastation for commission. This case ultimately defied the authority of the commission to regulate the Internet and enforce Network Neutrality obligations ( Net Neutrality, 2010). 6

7 If the concept of the Network Neutrality were to be completely removed from the current Internet policy in which we abide by, the free-flowing Internet, as we know it could very well become history. If these network giants carry through with their proposal, the Internet will be forever changed. Innovation would be hindered, and we would be headed towards a pay-per-view Internet with the possibility of paying network taxes (Save the Internet, 2010). The biggest fear that has created a panic and outcry from the public is that two Internets could emerge from this-a public one, as we know it today, which could be referred to as the slow lane, as well as a private one that provides a fast lane but requires expensive fees ( Net Neutrality, 2010). It is essential that the operation of the Internet remains the way it is because if the current policy were to change, the only ones gaining from this alteration would be broadband service providers. The extra profits generated from the fees that they impose on consumers are only to invest in their own network, not to actually benefit the Internet consumer. The discrimination of lawful content that we are entitled to view endangers our basic Internet freedoms (Public Knowledge, 2010). In order to preserve our current Internet standards, an implementation of rules and regulations for broadband service providers is necessary. Although the FCC s authority has already been challenged in their case against ComCast, it is essential that they continue the fight to enforce this policy and gain some authority to regulate to ensure that it will remain. The desperate need for their regulation to prevent cable and telecommunications companies from using their control over Internet access to their advantage to favor some online content and services over others is at an all-time high ( Net Neutrality, 2010). Network neutrality protections ultimately minimize the control 7

8 of network owners, maximize competition, and make room for innovation (Wikipedia, 2010). The Internet has made the First Amendment a living document, and that is one of the main reasons as to why this independent medium has grown exponentially. It is imperative that the F.C.C. continues to fight for Network Neutrality and their right to regulate to protect freedoms on the Internet. Leaving the control up to the Internet service providers to impede or block a particular content or service could spell the end of innovation, and regrettably, communication. On December 1 st, 2010, Julius Genachowski presented a proposal to forbid both wired and wireless Internet service providers from blocking lawful content, and would require them to enclose basic information about how the companies manage their networks (Wyatt, 2010). Although the authority of this agency has been put back into question, it still brings us one step closer to enforcing this policy and to promote the spread of broadband. The Internet is an open medium for all that further validates our guaranteed freedoms as an American citizen, and should continue to remain that way for generations to come. 8

9 References Wyatt, E. (2010, December 1). FCC Chairman Outlines Broadband Framework. New York Times. Retrieved from Net Neutrality. (2010, December 2). New York Times. Retrieved from ml Network Neutrality 101. (2010). Retrieved December 10, 2010, from Save The Internet website: Network Neutrality. (2010, December 8). Retrieved December 10, 2010, from Wikipedia website: Network Neutrality. (2010). Retrieved December 10, 2010, from Public Knowledge website: Wu, T. Net Neutrality, Broadband Discrimination. Journal of Telecommunications and High Technology Law, Vol. 2, p. 141, Retrieved from: or doi: /ssrn Trager, Robert, Joseph Russomanno, and Susan Dente Ross. The Law of Journalism & Mass Communication. 2nd ed. Washington D.C.: CQ, Print. Van Schewick, B. Towards an Economic Framework for Network Neutrality Regulation. Journal of Telecommunications and High Technology Law, Vol. 5, pp , Retrieved from: 9

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