The Internet is one of the most powerful tools of the modern age as source of knowledge, entertainment and wealth generation. While a large majority of the population has no understanding of how the Internet actually works and how the content arrives at their computer they understand its importance. Scholars, lawyers, lawmakers and advocacy groups have began to worry about who has control of the Internet's content and its distribution.
Net neutrality is the idea that Internet service providers or ISP's should not discriminate against information being sent over the Internet and must treat all data packets equally regardless of source, type or content. The danger of an Internet without network neutrality is that Internet service providers would be allowed to limit programs or services the end-user can access. ISP's currently control the “last mile” used to connect to the Internet. The worry is that Internet service providers will leverage the power to discriminate against companies that are in direct competition or create revenue by limiting companies that do not pay them a fee (cybertelecom.org, 2009). The American Civil Liberties Union believes,
"Without net neutrality, network providers can block or slow down access to sites they don't like. They can also determine what services and equipment users can access, dictate whether users are allowed to visit popular chat rooms or play popular games and assign higher fees for popular downloads." (aclu.org, 2006)
The law must strike a balance between protecting the private rights of Internet service providers to manage their businesses and protecting the public's interest.
The Internet can be viewed as a series of wires connected by central hubs, known as routers. These routers receive data from individuals or servers sort and redistribute it appropriately. When demand is relatively low the routers have no problem organizing and distributing this data. The issue arises when the data becomes overwhelming to the router and the router must start a queuing system much like the line at a checkout counter. This queuing system is where the issue of net neutrality stems (Felten, 2005) (Wu, 2005).
Those in favor of Net Neutrality believe that the packet should be distributed in a first-in first-out basis. This system treats all packets of data, equally regardless of content, source, or size. This is also known as a “best effort” network because a network makes its best effort to deliver packets as quickly as possible in order they are received. (cybertelecom.org, 2009)
The worry is that packets will be reordered or dropped based on the decisions of these internet service providers. The FCC has filed a motion to stop Comcast from setting its routers to slow down the transfer of packets from peer-to-peer programs of its customers.
Opponents of net neutrality already believe that the first-in-first-out method discriminates against a high-bandwidth traffic there requires low jitter or hiccups such as VoIP telephone or streaming video. Cybertelecom.org sums it by saying “… because TCP/IP treats all traffic the same it discriminates.” Some companies argue that they must discriminate against some packets to prevent spam and virus.
Internet service providers such as Comcast and other opponents disagree they say net neutrality is a solution to a problem that does not exist (cybertelecom.org, 2009). Even the FCC chairman Michael Powell stated that “there was no need for preemptive regulations that could imperil still-to-be discovered business models on the Internet (CNET News.com, 2005).”
Later that year, the first case is about net neutrality begun to surface. Consumer complaints about Internet service providers no allowing applications like virtual private networks or WiFi devices as well as the case of Madison River. Madison River is a North Carolina telecommunications company that intentionally blocked voice over Internet phone traffic (Wikipedia, 2009). Madison River may have been the first company to fall into the FCC's crosshairs for net neutrality, but it certainly was not the last. Companies like Comcast, AOL and AT&T have all been the focus of FCC investigations.
Although the FCC is the main legal body actively pursuing net neutrality. Congress has moved to pass net neutrality bills multiple times in both the House and the Senate and the FTC has begun to look into the regulation of Internet. Also net neutrality falls under the umbrella of antitrust law. For example, when content providers such as Comcast or AT&T began to vertically integrate to provide both content and distribution this brings up strong questions of monopolization (Wikipedia, 2009)(cybertelecom.org, 2009).
Both the FTC and FCC have drawn fire from large corporations with invested interests in the internet over their regulation. Verizon states “with both the FCC and the Federal Trade Commission engaged in oversight of Internet usage and practices, new legislation and more regulation, with all their unintended consequences, are not needed (cybertelecom.org, 2009).”
Net neutrality has its roots in the tradition of common carriage. Common carriers are public transport providers of goods, people or information such as railroads, airplanes and telecommunication companies. They cannot discriminate what they carry or where they carry it. This provides the important movement of goods and information that keeps our country moving (cybertelecom.org, 2009).
The DC circuit's interpretation of the 1934 communications act found that a subscriber has the reasonable right to use his telephone in ways which are privately beneficial without being publicly detrimental. This will later set the precedent in which the FCC drafted its consumer rights to net neutrality (cybertelecom.org, 2009).
The Federal Communications Commission created a policy to promote the nature of the public Internet (FCC.org, 2009).
Consumers are entitled to access the lawful Internet content of their choice.
Consumers are entitled to run applications and services of their choice, subject to the needs of law enforcement.
Consumers are entitled to connect to their choice of legal devices that do not harm the network.
Consumers are entitled to competition a long network providers, application and service providers, and content providers
In 2005, the FCC for the first time in four states network neutrality principles by starting an investigation towards Madison River communications, a local telephone carrier was blocking voice over IP service. The FCC acted on a complaint filed by Vonage, a VoIP telephone company. Prior to the FCC to taking Madison River to court they settled because Madison River agreed to stop blocking voice over IP calls and pay $15,000 to the US Treasury (Wu, 2005)(CNET News.com, 2005). The Madison River case because it was settled out of court did not set a precedent for net neutrality, but it did show the FCC was willing to enforce its policies (Wikipedia, 2009).
In August of 2008 the FCC voted to uphold a complaint against Comcast, ruling that it even legally inhibiting users from using bit torrent at peer-to-peer filesharing software. Similar in nature to the Madison River case, the FCC did not penalize Comcast, but requested that they stop such practices (FCC.org, 2009). The FCC Chairman 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 and the way they see fit, unless there's good reason (Wikipedia, 2009).”
When AT&T and BellSouth merged it created an agreement on net neutrality that it would “not provide or sell to any Internet content, application or service providers… any service or privileges, degrades or prioritizes any packet transmitted over AT&T/BellSouth's broadband Internet access service based on its source, ownership or destination (Wikipedia, 2009).”
The argument over net neutrality is far from over with companies like Comcast still pushing the envelope and challenging the status quo. Although no broadband provider is currently blocking websites, Comcast voiced that they would be in favor of charging a fee so that one website would load faster than another. BellSouth said in an interview to Cnet News.com
“They and other broadband provider should be able to offer different plans that feature enhanced levels of service or promote their own brand names and products or services of selected vendors… [ That includes ] entering into arrangements with content providers by which the content provider pays for special treatment, such as preferential listings or faster downloads from the provider's website were receiving higher quality of service (CNET News.com, 2005).”
Moving forward, government agencies, Congress and lawmakers must carefully walk a fine line between providing protection to citizens and infringing on a business's right to profit, innovate, and expand. Christopher Calabrese, American Civil Liberties Union legislative counsel, summed it up by saying,
"The Internet is the greatest forum for free speech every created, and these net neutrality principles, if adapted, will ensure access to a wide variety of information and services available online. The rules proposed by the FCC will allow the American public to choose how it accesses and uses the Internet without interference from some corporate monopoly (aclu.org, 2006).”
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