[Wednesday, February 20, 2013]
User beware. The well-known expression caveat emptor has taken on new meaning in the sphere of content consumption, and it will be evermore important in the absence of rules for unfettered service to all Internet subscribers.
If you haven’t been following the net neutrality conversation, here is a brief background and the case for why you should be interested.
In 2007 Comcast throttled BitTorrent on its network. Peer-to-peer (p2p) file sharing was slowed while other Comcast subscribers’ use continued without any interference. The Federal Communications Commission (FCC), which has clear authority over broadcasters and telecommunications, but less clear authority over Internet access providers, tried to censure Comcast for discriminating against p2p sharers, but the Court of Appeals for the D.C. Circuit determined that the FCC had exceeded its authority. Of course, Congress could always enact legislation prohibiting such discrimination, or granting the FCC clear authority to regulate the Internet, but to date, Congress has done neither.
Fast forward to December 2010. The FCC adopted three Open Internet rules. The rules were then published in the Federal Register in September 2011 (47 C.F.R. 8). Basically, the rules provide for: (1) Required Disclosure of Network Management Practices; (2) No Blocking Access to Legal Sites; and (3) No Unreasonable Discrimination Against Competing Applications. Publication in the Federal Register permits opposition to challenge the rules before they take effect. Verizon has done just that, and prepaid wireless provider MetroPCS has joined Verizon’s suit.
In the most rudimentary terms, Verizon’s arguments are (1) the FCC does not have the authority to enact its Open Internet Rules, and this is merely an extension of the case between Comcast and the FCC; (2) the rules are unconstitutional and violate the First and Fifth Amendments; and (3) the rules are “arbitrary and capricious,” as the need for these rules is not supported by any significant problem, and the rules apply to a single class of service providers where, in the Internet economy, many others are capable of engaging in the type of “gatekeeping” that the rules seek to prohibit. Of course, the FCC asserts that its authority to adopt the Open Internet Rules is reasonably interpreted from the Telecommunications Act. Also, the FCC asserts that the rules are consistent with the First and Fifth Amendments, and based on substantial evidence.
The merits of these arguments should be given serious consideration, but there is no need to address them here. The D.C. Circuit will entertain the arguments of both parties. Perhaps Verizon wins on the basis on the FCC lacking authority, but then the crux of the matter still remains: should the Internet be treated as a set of unrestricted pipes, at least as far as lawful content is concerned?
It’s worth noting that at the annual State of the Net Conference, held on January 22-23, 2013, Congresswoman Anna Eshoo, delivering the Keynote address, stated, “Should the court overturn the FCC’s rules, I’ll be prepared to introduce legislation clarifying the commission’s authority to ensure a free and open Internet.” Certainly, one representative’s view of the government agency’s authority is not quite the same as having clear Congressional authority to enact Open Internet Rules, however, Congresswoman Eshoo’s statement indicates the conversation on Network Neutrality will not have its last day in the D.C. Circuit.
She rightfully suggests that Open Internet Rules provide basic “rules of the road,” which ensure a necessary protection for consumers: Internet users, i.e. you. These rules would prohibit ISPs (Internet Service Providers) from having sole discretion over decisions to slow users’ ability to access the content of their choosing, whether it be to stream video, download music, or conduct research. Until this protection is clearly afforded to Internet subscribers though – user beware.