Network neutrality in the United States

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Network Neutrality

Network neutrality in the United States is a contentious issue. Currently there is generally network 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; however, there are no clear legal restrictions against this. Some broadband services, for example Verizon's Fios, block port 80, preventing consumers from running a website on the standard http port unless they upgrade to a "business" account. In recent years, advocates of network neutrality have sought to restrict such changes while publicly criticizing proposed changes by telecommunications companies.

In 2005 and 2006, corporations supporting both sides of the issue spent large amounts of money lobbying Congress. [1] 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 abortive attempts have been made at bills with certain network neutrality provisions passed by Congress. In each case, these bills would also have prohibited Internet Service Providers from offering service plans (known as "tiered service") priced according to the user's choice of Quality of Service levels: "[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;" is a typical provision.[2] Other provisions common to the net neutrality discussion were included in the proposed legislative works.

The debate in the U.S. in part extends internationally, due to the global nature of many internet services. (See the main article on net neutrality for details). In practice, net neutrality is also influenced by state level politics. [3]

Contents

[edit] History of network neutrality concept

While the term is new, the basic concept originated in the age of the telegram in 1860 or even earlier, where telegrams were routed 'equally' without attempting to discern 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 considered akin to public utilities and overseen by the FCC in order to ensure fair pricing and access; such networks are expressly forbidden to give preferential treatment.

Cable modem internet access has always been categorized under U.S. law as an information service, and not a telecommunications service, and thus has not been subject to "common carrier" regulations. High-speed data links, (which make up the Internet's core) are also not regulated by common carrier law. On the other hand, internet access across the phone network, including DSL, was for a long time categorized as a telecommunications service, and subject to common carrier regulations. However, on August 5, 2005, the FCC reclassified DSL services as Information Services rather than Telecommunications Services, and replaced common carrier requirements on them with a set of four less-restrictive net neutrality principles.[4] This sparked a debate over whether or not Internet Service Providers should also be allowed to discriminate between different service providers by offering higher network priority to higher-paying companies and customers, allowing some services to operate faster or more predictably and ultimately become more acceptable to end users.

Some broadband providers have proposed to start charging content providers in return for higher levels of service, 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, while those content providers who do not pay the higher fees would get a lesser level of service. Given this ability to accelerate the handling of selected packets, the service providers would perhaps give Quality of Service guarantees to given senders or recipients.

The legal debate about "net neutrality" regulations echoes previous arguments about the public interest requirements of the telecommunications industry, and whether companies involved in broadcasting are best viewed as "community trustees" (with obligations to society and consumers) or "marketplace participants" (with obligations only to their shareholders).[5]

Current FCC rules do not clearly prevent telecommunications companies from charging fees to certain content providers in exchange for preferential treatment. On the other hand, 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 [6].

[edit] Attempted legislation

By late 2005, network neutrality regulations were included in several Congressional draft bills, as a part of ongoing proposals to reform the Telecommunications Act of 1996. They would generally require internet providers to allow consumers access to any application, content, or service. However, important exceptions allow providers to discriminate for security purposes, or to offer specialized services like "broadband video" service. These regulations generally forbid ISPs from offering different service plans to their customers.

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 network neutrality question:

Title Bill number Date introduced Sponsors Provisions Status
Internet Non-Discrimination Act of 2006[7][8] S. 2360 March 2, 2006 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 Act of 2006[9][10] H.R. 5252 March 30, 2006 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.[11]
Network Neutrality Act of 2006[12] H.R. 5273 April 3, 2006 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.[13]
Communications, Consumer’s Choice, and Broadband Deployment Act of 2006[14] S. 2686 May 1, 2006 Ted Stevens (R-Alaska), Daniel Inouye (D-Hawaii) Aims to amend the Communications Act of 1934 and addresses net neutrality by directing the FCC to conduct a study of abusive business practices predicted by the Save the Internet coalition and similar groups. Sent to the full 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[15] H.R. 5417 May 18, 2006 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.
Internet Freedom Preservation Act (casually known as the Snowe-Dorgan bill)[16] S. 215 (110th Congress) formerly S. 2917 (109th Congress) January 9, 2007 Olympia Snowe (R-Maine), Byron Dorgan (D-North Dakota), Co-Signers: Barack Obama, Hillary Clinton, John Kerry and others 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. However, it still allows prioritizing content as long as it origins 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 Committee on Commerce, Science, and Transportation.
Internet Freedom Preservation Act of 2008[17] H.R.5353 February 12, 2008 Rep. Edward Markey [D-Mass.], Rep. Charles Pickering [R-Miss.] 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

Congressman Adam Schiff (D-California), one of the Democrats who voted for the 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."[18]

[edit] Legal history

Originally, the Internet was not legally available for commercial use. It became available in the late 1980s.

In the late 1990s and early 2000s, consumers and businesses began to attach new devices to their internet connections, and use internet services that were not in existence in the mid-1990s.

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.[19] 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. 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.

FCC Chairman Michael Powell in 2004 announced a new set of non-discrimination principles, which he called the principles of "Network Freedom." In a speech at the Silicon Flatirons Symposium in February 2004, 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.[20]

As remarked upon by David Isenberg,[21] 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.

On August 5, 2005, the FCC adopted a policy statement stating its adherence to these principles.[4]

Under pressure from the FCC and consumer groups, the broadband operators generally relaxed their most glaring restrictions on network usage.

In early 2005, in the Madison River case, the FCC for the first time showed a 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 precedent. Nevertheless, the FCC's action established that it would not sit idly by if other US operators discriminated against voice over IP traffic.

[edit] Regulatory history of broadband

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 once regulated as a telecommunications service subject to unbundling requirements. As the two types of networks have increasingly provided the same services, it has become difficult to justify different sets of rules, leading to the question of which rules should apply to both.

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 had as a consequence the economic collapse of many competitors in access services[citation needed].

In the U.S., DSL and cable Internet access were formerly regulated by the FCC according to different rules, but in 2005 the FCC re-classified DSL according to the more permissive cable rules[1] which was the same year that the US Supreme Court in Brand X upheld the classification of cable Internet access as an information service.

An additional regulatory complexity is that cable operators and telephone operators are competing beyond broadband Internet access: cable operators by providing telephone service, and telephone service providers by upgrading their networks with FTTX in order to provide enough bandwidth to support television services.

Advocates of network neutrality wish to re-classify both under the old rules for DSL, which require unbundling and several other restrictions.

[edit] State regulations

In the United States, New York has established net neutrality as a telecommunications standard (See 16 NYCRR Part 605).

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

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."[citation needed]

[edit] Technical complications

Complicating the discussion is the practical reality that 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. It is probably infeasible 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.

Further, the discussion has been very U.S.-centric and very terrestrial-network centered, even though the Internet is inherently global and mobility is the fastest growing source of new demand.

The immediate debate over "neutrality" does not capture the many dimensions of this topic; for example, should voice packets get higher priority than packets carrying email? Or, should emergency services, mission-critical, or life-saving applications, such as tele-medicine, get priority over spam?[22]

[edit] Alternatives to cable and DSL

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 the Spring of 2006, deployments beyond cable and DSL service have created little new competition.

Cable companies, in response to this threat, 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, however, 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.[23]

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

[edit] See also

[edit] References

  1. ^ "AT&T, Comcast Rout Google, Microsoft in Net Neutrality Battle", Bloomberg News, 2006-07-20. Retrieved on 2007-01-07. 
  2. ^ Internet Freedom Preservation Act, AKA Snowe-Dorgan Amendment
  3. ^ State Level Net Neutrality, Joho the Blog, David Weinberger
  4. ^ a b Federal Communications Commission (2005-08-05). New Principles Preserve and Promote the Open and Interconnected Nature of Public Internet (PDF). Retrieved on 2006-07-07.
  5. ^ Mark S. Fowler & Daniel L. Brenner, A Marketplace Approach to Broadcast Regulation, 60 Texas L. Rev. 207 (1982) is the definitive statement of this by the FCC Chairman at the time, but this theory has been worked out extensively since.
  6. ^ http://www.freepress.net/docs/wu_lessig_fcc.pdf
  7. ^ Wyden, Ron (2006-03-02). Wyden Moves to Ensure Fairness of Internet Usage with New Net Neutrality Bill (HTML). Retrieved on 2006-07-07.
  8. ^ http://www.freepress.net/congress/bills/s2360.pdf
  9. ^ U.S. Government Printing Office (2006-05-15). FULL TEXT of Communications Opportunity, Promotion and Enhancement Act of 2006 (H.R. 5252) (PDF). Retrieved on 2006-08-11.
  10. ^ Upton, Fred (2006-03-30). Upton Hearing Examines Bipartisan Bill that Will Bring Choice & Competition to Video Services (HTML). Retrieved on 2006-07-07.
  11. ^ Huge Victory for Real People as Telco Bill Dies. Retrieved on 2006-12-08.
  12. ^ Markey, Ed (2006-04-03). Markey Network Neutrality Amendment (PDF). Retrieved on 2006-07-07.
  13. ^ http://clerk.house.gov/evs/2006/roll239.xml
  14. ^ Stevens, Ted (2006-05-01). Communications, Consumer’s Choice, and Broadband Deployment Act of 2006 (PDF). Retrieved on 2006-07-07.
  15. ^ http://www.publicknowledge.org/pdf/hr5417-109.pdf
  16. ^ U.S. Government Printing Office (2007-01-09). FULL TEXT of Internet Freedom Preservation Act (S. 215) (PDF). Retrieved on 2007-01-09.
  17. ^ Open Congress. FULL TEXT of Internet Freedom Preservation Act of 2008 (H.R.5353). Retrieved on 2008-04-21.
  18. ^ "House panel votes for Net neutrality", CNET News.com, 2006-05-25. Retrieved on 2006-05-30. 
  19. ^ NETWORK NEUTRALITY, BROADBAND DISCRIMINATION by Tim Wu
  20. ^ Powell, Michael (2004-02-08). Preserving Internet Freedom: Guiding Principles for the Industry (PDF). Retrieved on 2006-07-07.
  21. ^ Isenberg, David (2005-08-07). How Martin's FCC is different from Powell's (HTML). Retrieved on 2006-07-07.
  22. ^ "Is Net Neutrality Bad for National Preparedness?", K. A. Taipale, Center for Advanced Studies in Sci. & Tech. Policy Research Brief No. 06-14 (June 2006)
  23. ^ Various (2006-08-31). Scenarios for the Network Neutrality Arms Race (PDF). Retrieved on 2006-09-06.

[edit] External links