What Is Net Neutrality?
Will new federal rules make the Internet better?
Today’s topic: Net neutrality
And now, your daily dose of legalese: This article does not create an attorney-client relationship with any reader. In other words, although I am a lawyer, I’m not your lawyer. In fact, we barely know each other. If you need personalized legal advice, contact an attorney in your community.
Can Internet Service Providers Discriminate?
I recently got an email from R. Adams–I don’t know whether that’s Mr. or Ms. Adams–asking the following question, “How can it be legal that certain Internet providers [can] ‘throttle’ or slow down your Internet if you are a heavy user to save bandwidth for other customers? This singles out individuals for poor performance for a service they pay for.”
The quick answer is that your contract for Internet service probably allows the provider to do just that. But the larger question–whether such practices should be outlawed–is part of the current legal debate over the so-called net neutrality rules..
What is Net Neutrality?
“Net neutrality” is a term used to summarize certain principles of Internet governance. The basic idea is that the Internet should treat all forms of content equally, rather than, say, blocking or “throttling” certain types of content. As a legal matter, it comes down to whether Internet service providers should be subject to regulations designed to promote net neutrality; for example, rules that prohibit providers from requiring payment from websites that want faster access times.
Can the FCC Enforce Net Neutrality?
In December 2010, the US Federal Communications Commission, or FCC, adopted a series of “Open Internet Rules” designed to enforce the principles of net neutrality. The rules would forbid Internet service providers from blocking lawful content, and would forbid discrimination in transmitting lawful content.
But it’s not clear whether those rules have any teeth. First, the House of Representatives has voted to block the FCC from enforcing the rules. And secondly, at least one Internet service provider (Verizon) has challenged the validity of the rules in court.
Can the FCC Make the Law?
Supporters of net neutrality argue that broadband providers perform a public service.
The main legal argument against the new rules is that they go beyond the FCC’s authority. As a federal agency, the FCC has no independent power to make “law”; instead it can only make regulations that implement some law already passed by Congress. But Congress has never passed a net neutrality statute.
In adopting the net neutrality rules, the FCC relied on its general grant of power from Congress. But many experts agree that the FCC is probably skating on thin ice.
What Is the FCC?
The FCC was created by the Communications Act of 1934 which gave the agency power over certain public means of communication (technically known as common carriers) including telephones and radio and TV broadcasting. In 2002, however, the FCC concluded that broadband Internet service is not a communications service within its mandate, leaving the agency with only a limited power to address Internet issues.
An Appeals Court Rules Against the FCC
In April 2010, a federal appeals court actually overturned an earlier attempt by the FCC to enforce net neutrality rules. That case arose from an order by the FCC against Comcast, penalizing the service provider for interfering with certain peer-to-peer networking applications. The court held that the FCC has no legal authority to enforce anti-throttling rules.
The FCC obviously thinks otherwise, and in its December 2010 rules, the Commission asserts that it has authority to regulate net neutrality under Section 706 of the Telecommunications Act of 1996. That section requires the FCC to report to Congress each year as to whether broadband service is being deployed to all Americans in a reasonable and timely manner. However, it’s unclear whether section 706 grants the FCC power to enact sweeping net neutrality rules.
Freedom of Contract vs. Common Carriers
So why doesn’t Congress just adopt a net neutrality law? Well, there are philosophical differences about the proper scope of the law. I don’t have time to go into all the details, unfortunately, but opponents of net neutrality legislation argue that broadband providers have a built-in incentive to provide content-neutral service and, therefore, the basic principle of freedom of contract should apply. Supporters of the rules argue that, although broadband providers are private companies, they perform a public service (like the operators of trains or power companies) and so the terms of their contracts should be subject to regulation.
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About the Author
Adam Freedman is a lawyer and a regular contributor to Point of Law and Ricochet. Freedman’s legal commentary has been featured in The New York Times, the Minneapolis Star-Tribune, and on Public Radio. He holds degrees from Yale, Oxford, and the University of Chicago. He is the author of The Naked Constitution (2012).