Net neutrality in the United States

In the United States, net neutrality has been an issue of contention among network users and access providers since the 1990s.[1][2] Until 2015, there were no clear legal restrictions against practices impeding net neutrality.[3][4][5][6] In 2005 and 2006, corporations supporting both sides of the issue spent large amounts of money lobbying Congress.[7] Between 2005 and 2012, five attempts to pass bills in Congress containing net neutrality provisions failed. Each sought to prohibit Internet service providers from using various variable pricing models based upon the user's Quality of Service level, described as tiered service in the industry and as price discrimination by some economists.[8] [9]

In April 2014, the Federal Communications Commission (FCC) reported a new draft rule that would have permitted ISPs to offer content providers a faster track to send content, thus reversing its earlier net neutrality position.[10] In May 2014, the FCC decided to consider two options: permitting fast and slow broadband lanes, thereby compromising net neutrality; and second, reclassifying broadband as a telecommunication service, thereby preserving net neutrality.[11] In November 2014, President Obama recommended the FCC reclassify broadband Internet service as a telecommunications service.[12] In January 2015, Republicans presented an HR discussion draft bill that made concessions to net neutrality but prohibited the FCC from enacting any further regulation affecting ISPs.[13] On February 26, 2015, the FCC ruled in favor of net neutrality by reclassifying broadband as a common carrier under Title II of the Communications Act of 1934 and Section 706 of the Telecommunications act of 1996.[3][14][15] On April 13, 2015, the FCC published the final rule on its new "Net Neutrality" regulations.[16][17]

Regulatory history

Early history 1980–2000

While the term is new, the ideas underlying net neutrality have a long pedigree in telecommunications practice and regulation. The concept of network neutrality originated in the age of the telegram in 1860 or even earlier, where standard (pre-overnight telegram) telegrams were routed 'equally' without discerning 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) have been considered common carriers under U.S. law, which means that they have been akin to public utilities and expressly forbidden to give preferential treatment. They have been regulated by the Federal Communications Commission (FCC) in order to ensure fair pricing and access.

In the late 1980s the Internet became legally available for commercial use. It was not until the late 1990s and early 2000s that US consumers and businesses began to attach new devices to their Internet connections, and use Internet services that were not in existence prior.

Also in the 1980s, arguments about the public interest requirements of the telecommunications industry in the U.S. arose; whether companies involved in broadcasting were best viewed as community trustees, with obligations to society and consumers, or mere market participants with obligations only to their shareholders.[18] The legal debate about net neutrality regulations of the 2000s echoes this debate.

In the 1990s, some U.S. politicians began to express concern over protecting the Internet:

How can government ensure that the nascent Internet will permit everyone to be able to compete with everyone else for the opportunity to provide any service to all willing customers? Next, how can we ensure that this new marketplace reaches the entire nation? And then how can we ensure that it fulfills the enormous promise of education, economic growth and job creation?
—Al Gore, 1994, [19]

Cable modem Internet access and high-speed data links, which make up the Internet's core, had always been categorized under U.S. law as an information service, unlike Internet access by phone, and not as a telecommunications service, and thus have not been subject to common carrier regulations, as upheld in National Cable & Telecommunications Association v. Brand X Internet Services.

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. The debate that started in the U.S. extended internationally with distinct differences of the debate in Europe.[20]

Timeline of Events

January 12, 2003- Law Professor Tim Wu coins phrase Net Neutrality while discussing “competing contents and applications.” [21]

June 27, 2005- Supreme Court decides that “communications, content, and applications are allowed to pass freely over the Internet's broadband pipes” [22]

September 1, 2007- “Comcast begins interfering with Bittorrent traffic on its network.”

January 9, 2008- FCC investigates Comcast traffic policy and treatment of Bittorrent traffic [23]

August 9, 2010- Google and Verizon try to cut deal to make larger parts of internet to be exempt from protection from the net neutrality rules from the FCC [24]

December 21, 2010- FCC creates “Open Internet Rules” which “established high-level rules requiring transparency and prohibiting blocking and unreasonable discrimination to protect Internet openness”. [25]

September 23, 2011- The Federal Register publishes the Open Internet Rules [26]

May 13, 2014- FCC releases new proposal including new rules on allowing “fast lanes and slow lanes online” [27]

June 13, 2014- FCC investigates large companies such as Netflix for interconnection policies [28]

July 15, 2014- FCC opens up on Public Knowledge for public comments, received 1.1 millions comments on the first day. Determined that "less than 1% of comments were clearly opposed to net neutrality." [29] [30]

September 15, 2014- FCC receives 3.7 million comments in total. “The FCC's server crashes again as millions more people, companies, and advocacy organizations weigh in on the open internet rules.”

February 26, 2015- FCC passes the Title II Net Neutrality Rules. “In a 3-2 party-line vote, the FCC passes open internet rules applying to both wired and wireless internet connections grounded in Title II authority.” [31]

FCC promotes freedom without regulation (2004)

In February 2004 then Federal Communications Commission Chairman Michael Powell announced a set of non-discrimination principles, which he called the principles of "Network Freedom." In a speech at the Silicon Flatirons Symposium, Powell encouraged ISPs to offer users these four freedoms:

  1. Freedom to access content.
  2. Freedom to run applications.
  3. Freedom to attach devices.
  4. Freedom to obtain service plan information.[32]

In early 2005, in the Madison River case, the FCC for the first time showed 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. Yet the FCC did not fine Madison River Communications. The investigation was closed before any formal factual or legal finding and 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.[33] Since the FCC did not formally establish that Madison River Communications violated laws and regulation, the Madison River settlement does not create a formal precedent. Nevertheless, the FCC's action established that it would not sit idly by if other US operators discriminated against voice over IP traffic.

CLEC, dial-up, and DSL deregulation (2004–2005)

In 2004, the court case USTA v. FCC voided the FCC's authority to enforce rules requiring telephone operators to unbundle certain parts of their networks at regulated prices. This caused the economic collapse of many competitive local exchange carriers (CLEC).[34]

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 regulated as a telecommunications service. In 2005, the FCC reclassified Internet access across the phone network, including DSL, as "information service" relaxing the common carrier regulations and unbundling requirement.

During the FCC's hearing, the National Cable & Telecommunications Association urged the FCC to adopt the four criteria laid out in its 2005 Internet Policy Statement as the requisite openness. This made up a voluntary set of four net neutrality principles.[35] Implementation of the principles was not mandatory; that would require an FCC rule or federal law.[36] The modified principles were as follows:[37][38]

  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.

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. In December 2006, the AT&T/Bell South merger agreement defined 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."[39]

FCC tries and fails to punish Comcast for throttling BitTorrent (2007–2010)

In October 2007, Comcast, the largest cable company in the US, was found to be blocking or severely delaying BitTorrent uploads on their network using a technique which involved creating 'reset' packets (TCP RST) that appeared to come from the other party.[40] On March 27, 2008, Comcast and BitTorrent reached an agreement to work together on network traffic where Comcast was to adopt a protocol-neutral stance "as soon as the end of [2008]", and explore ways to "more effectively manage traffic on its network at peak times.".[41] In December 2009 Comcast reached a proposed settlement of US$16 million, admitting no wrongdoing[42] and amounting to no more than US$ 16 dollars per share.[43]

In August 2008, the FCC made its first Internet network management decision.[44] It voted 3-to-2 to uphold a complaint against Comcast ruling that it had illegally inhibited users of its high-speed Internet service from using file-sharing software because it throttled the bandwidth available to certain customers for video files to ensure that other customers had adequate bandwidth.[45][46] The FCC imposed no fine, but required Comcast to end such blocking in the year 2008, ordered Comcast to disclose the details of its network management practices within 30 days, submit a compliance plan for ending the offending practices by the end of the year, and disclose to the public the details of intended future practices. Then-FCC chairman Kevin J. Martin said the order was meant to set a precedent, that Internet providers and all communications companies could not prevent customers from using their networks the way they see fit, unless there is a good reason. In an interview Martin stated that "We are preserving the open character of the Internet" and "We are saying that network operators can't block people from getting access to any content and any applications." The case highlighted whether new legislation is needed to force Internet providers to maintain network neutrality, i.e., treat all uses of their networks equally. The legal complaint against Comcast was related to BitTorrent, software that is commonly used for downloading movies, television shows, music and software on the Internet.[47]

In April 2010, the FCC's 2008 cease-and-desist order against Comcast to slow and stop BitTorrent transfers was denied. The U.S. Court of Appeals ruled that the FCC has no powers to regulate any Internet provider's network, or the management of its practices: "[the FCC] 'has failed to tie its assertion' of regulatory authority to an actual law enacted by Congress."[48] In May 2010, the FCC announced it would continue its fight for net neutrality.[49] In June 2010, the US Court of Appeal for the District of Columbia in Comcast Corp. v. FCC overturned the FCC's Order against Comcast, and ruled that the FCC lacked the authority under Title One of the Communications Act of 1934, to force ISPs to keep their networks open, while employing reasonable network management practices, to all forms of legal content.[50]

FCC's conditions for spectrum auction (2008)

In February 2008, Kevin Martin, then Chairman of the Federal Communications Commission, said that he is "ready, willing and able," to prevent broadband ISPs from irrationally interfering with their subscribers' Internet access.[51]

In 2008, when the FCC auctioned off the 700 MHz block of wireless spectrum in anticipation of the DTV transition, Google promised to enter a bid of $4.6 billion, if the FCC required the winning licensee to adhere to four conditions:[52]

These conditions were broadly similar to the FCC's Internet Policy Statement; FCC's applications and content were combined into a single bullet, and an extra bullet requiring wholesale access for third party providers was included. The FCC adopted only two of these four criteria for the auction, viz., open devices and open applications, and only applied these conditions to the nationwide C block portion of the band.[53]

President Barack Obama's American Recovery and Reinvestment Act of 2009 called for an investment of $7.2 billion in broadband infrastructure and included an openness stipulation.

Expansion and legal overturn of 2005 FCC rules (2009)

Towards the end of 2009, FCC Chair Julius Genachowski announced at the Brookings Institute a series of proposals that would prevent telecommunications, cable and wireless companies from blocking certain information on the Internet, for example, Skype applications.[54] In September 2009, he proposed to add two rules to its 2005 policy statement, viz., the nondiscrimination principle that ISPs must not discriminate against any content or applications, and the transparency principle, requiring that ISPs disclose all their policies to customers. He argued that wireless should be subject to the same network neutrality as wireline providers.[55] In October 2009, the FCC gave notice of proposed rule making on net neutrality.[56] On April 6, 2010, the United States Court of Appeals for the District of Columbia Circuit in Comcast Corp. v. FCC ruled that the FCC lacked the authority to force ISPs to keep their networks open to all forms of content.[57]

FCC Open Internet Order (2010)

In December 2010, the FCC approved the FCC Open Internet Order banning cable television and telephone service providers from preventing access to competitors or certain web sites such as Netflix. On December 21, 2010, the FCC voted on and passed a set of 6 net "neutrality principles":

  1. Transparency: Consumers and innovators have a right to know the basic performance characteristics of their Internet access and how their network is being managed;
  2. No Blocking: This includes a right to send and receive lawful traffic, prohibits the blocking of lawful content, apps, services and the connection of non-harmful devices to the network;
  3. Level Playing Field: Consumers and innovators have a right to a level playing field. This means a ban on unreasonable content discrimination. There is no approval for so-called "pay for priority" arrangements involving fast lanes for some companies but not others;
  4. Network Management: This is an allowance for broadband providers to engage in reasonable network management. These rules don't forbid providers from offering subscribers tiers of services or charging based on bandwidth consumed;
  5. Mobile: The provisions adopted today do not apply as strongly to mobile devices, though some provisions do apply. Of those that do are the broadly applicable rules requiring transparency for mobile broadband providers and prohibiting them from blocking websites and certain competitive applications;
  6. Vigilance: The order creates an Open Internet Advisory Committee to assist the Commission in monitoring the state of Internet openness and the effects of the rules.[58]

The net neutrality rule did not keep ISPs from charging more for faster access. The measure was denounced by net neutrality advocates as a capitulation to telecommunication companies such as allowing them to discriminate on transmission speed for their profit, especially on mobile devices like the iPad, while pro-business advocates complained about any regulation of the Internet at all. Republicans in Congress announced to reverse the rule through legislation.[59][60] Advocates of net neutrality criticized the changes.[61]

FCC's authority narrowed (2014)

On January 14, 2014, the DC Circuit Court determined in the case of Verizon Communications Inc. v. Federal Communications Commission[62] that the FCC has no authority to enforce Network Neutrality rules, since service providers are not identified as "common carriers".[63] The court agreed that FCC can regulate broadband and may craft more specific rules that stop short of identifying service providers as common carriers.[64]

Section 706 vs. Title II

As a response to the DC Circuit Court's decision, a dispute developed as to whether net neutrality could be guaranteed under existing law, or if reclassification of ISPs was needed to ensure net neutrality.[65] Wheeler stated that the FCC had the authority under Section 706 of the Telecommunications Act of 1996 to regulate ISPs, while others, including President Obama,[66] supported reclassifying ISPs as common carriers under Title II of the Communications Act of 1934. Critics of Section 706 point out that the section has no clear mandate to guarantee equal access to content provided over the internet, while subsection 202(a) of the Communications Act states that common carriers cannot "make any unjust or unreasonable discrimination in charges, practices, classifications, regulations, facilities, or services." Advocates of net neutrality have generally supported reclassifying ISPs under Title II, while FCC leadership and ISPs have generally opposed such reclassification. The FCC stated that if they reclassified ISPs as common carriers, the commission would selectively enforce Title II, so that only sections relating to broadband would apply to ISPs.[65]

FCC policy proposals (2014)

Users with faster Internet connectivity (e.g., fiber) abandon a slow-loading video at a faster rate than users with slower Internet connectivity (e.g., cable or mobile).[67] A "fast lane" in the Internet can irrevocably decrease the user's tolerance to the relative slowness of the "slow lane".

On February 19, 2014 the FCC announced plans to formulate new rules to enforce net neutrality while complying with the court rulings.[68]

On April 23, 2014, the FCC reported a new draft rule that would permit broadband ISPs such as Comcast and Verizon to offer content providers, such as Netflix, Disney or Google, willing to pay a higher price, faster connection speeds, so their customers would have preferential access, thus reversing its earlier net neutrality position.[10][69][69][70][71][72]

On May 15, 2014, the FCC decided to consider two options regarding Internet services: first, permit fast and slow broadband lanes, thereby compromising net neutrality; and second, reclassify broadband as a telecommunication service, thereby preserving net neutrality.[11][73] The same day, the FCC opened a public comment period on how FCC rulemaking could best protect and promote an open Internet, garnering over one million responses, the most the FCC had ever received for rulemaking.[74] The FCC proposal for a tiered Internet received heavy criticism. Opponents argued that a user accessing content over the "fast lane" on the Internet would find the "slow lane" intolerable in comparison, greatly disadvantaging any content provider who is unable to pay for "fast lane" access. They argued that a tiered Internet would suppress new Internet innovations by increasing the barrier to entry. Video providers Netflix[75] and Vimeo[76] in their comments filed with the FCC used the research of S.S. Krishnan and Ramesh Sitaraman that provided quantitative evidence of the impact of Internet speed on online video users.[67] Their research studied the patience level of millions of Internet video users who waited for a slow-loading video to start playing. Users with faster Internet connectivity, such as fiber-to-the-home, demonstrated less patience and abandoned their videos sooner than similar users with slower Internet connectivity.[77][78][79]

Opponents of the rules declared September 10, 2014 to be the "Internet Slowdown". Participating websites were purposely slowed down to show what they felt would happen if the new rules took effect. Websites that participated in the Internet Slowdown included Netflix,[80] Reddit, Tumblr, Twitter, Vimeo and Kickstarter.[81][82][83][84] The Economist described the "Battle for the Net [...] now casting the upcoming FCC decision as an epic clash between "Team Internet" (a plucky band of high-tech multi-millionaires) and "Team Cable" (a dastardly bunch of Big-ISP billionaires)."[85]

On November 10, 2014, President Obama recommended the FCC reclassify broadband Internet service as a telecommunications service in order to preserve net neutrality.[12][86][87]

FCC Ruling 2015

On January 16, 2015, Republicans presented legislation, in the form of a U. S. Congress HR discussion draft bill, that makes concessions to net neutrality but prohibits the FCC from accomplishing the goal or enacting any further regulation affecting ISPs.[13][88]

On January 31, 2015, AP News reported the FCC would present the notion of applying ("with some caveats") common carrier status to the internet in a vote expected on February 26, 2015.[89][90][91][92][93] Adoption of this notion reclassified internet service from one of information to one of telecommunications[94] and, according to Tom Wheeler, chairman of the FCC, ensure net neutrality.[95][96] On the day before the FCC vote, it was expected to regulate the Internet as a public good.[14][15]

On February 26, 2015 the FCC applied common carrier of the Communications Act of 1934 and Section 706 of the Telecommunications act of 1996 to the internet.[3][4][5][14][15] On the same day, the FCC also voted to preempt state laws in North Carolina and Tennessee that limited the ability of local governments in those states to provide broadband services to potential customers outside of their service areas. While the latter ruling affects only those two states, the FCC indicated that the agency would make similar rulings if it received petitions from localities in other states.[97]

Social media platforms had a large role on engaging the public in the debate surrounding net neutrality. Popular websites such as Tumblr, Vimeo, and Reddit also participated in the “internet slowdown” on September 10, 2014, which the organization said was the largest sustained (lasting more than a single day) online protest effort in history.”[98] On January 26, 2015 popular blogging site Tumblr placed links to group Fight For The Future, a net neutrality advocacy group. The website displayed a countdown to the FCC vote on Title II on February 26th, 2015. This was part of a widespread internet campaign to sway congressional opinion and encourage users to call or submit comments to congressional representatives.[99] Net neutrality advocacy groups such as Save the Internet coalition[100] and Battle for the Net[101] responded to the 2015 FCC ruling by calling for defense of the new net neutrality rules.[100]

The FCC chairman, Tom Wheeler, commented, "This is no more a plan to regulate the Internet than the First Amendment is a plan to regulate free speech. They both stand for the same concept."[102]

On March 12, 2015, the FCC released the specific details of its new net neutrality rules,[103][104][105] and on April 13, 2015, the final rule was published.[16][17]

Violations

Many broadband operators imposed 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.[106] 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. Other broadband providers proposed to start charging service and content providers in return for higher levels of service (higher network priority, faster or more predictable), 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, accelerated or more reliable handling of selected packets.

In 2007 it was discovered that Comcast was blocking people from sharing digital files of the King James Bible and public-domain song recordings.[107]

In April 2012, the CEO of Netflix criticized Comcast for not "following net neutrality principles". Netflix charged that Comcast was restricting access to popular online video sites, in order to promote Comcast's own Xfinity TV service. The criticism followed similar comments from Washington, D.C.-based consumer group Free Press, which said that Comcast's policies gave "the Comcast product an unfair advantage against other Internet video services".[108]

In September 2012, a group of public interest organizations such as Free Press, "Public Knowledge" and the "New American Foundation's Open Technology Institute" filed a complaint with the FCC that AT&T was violating net-neutrality rules by restricting use of Apple's video-conferencing application "FaceTime" to certain customers. The application could formerly be used over Wi-Fi signals was suddenly restricted to cellular connection and customers with a shared data plan on AT&T, excluding those with older unlimited or tiered data plans.[109]

Broadband providers can block common service ports, such as port 25 (SMTP) or port 80 (HTTP), preventing consumers (and botnets) from hosting web and email servers unless they upgrade to a "business" account.

Attempted legislation

Arguments associated with net neutrality regulations came into prominence in mid-2002, offered by the "High Tech Broadband Coalition", a group comprising the Business Software Alliance; the Consumer Electronics Association; the Information Technology Industry Council; the National Association of Manufacturers; the Semiconductor Industry Association; and the Telecommunications Industry Association, some of which were developers for Amazon.com, Google, and Microsoft. The full concept of "net neutrality" was developed by regulators and legal academics, most prominently law professors Tim Wu, Lawrence Lessig and Federal Communications Commission Chairman Michael Powell often while speaking at the University of Colorado School of Law Annual Digital Broadband Migration conference or writing in Journal of Telecommunications and High Technology Law.[110]

By late 2005, several Congressional draft bills contained net neutrality regulations, as a part of ongoing proposals to reform the Telecommunications Act of 1996, requiring Internet providers to allow consumers access to any application, content, or service. However, important exceptions have permitted providers to discriminate for security purposes, or to offer specialized services like "broadband video" service.

In April 2006, a large coalition of public interest, consumer rights and free speech advocacy groups and thousands of bloggers—such as Free Press, People for the Ethical Treatment of Animals, American Library Association, Christian Coalition of America, Consumers Union, Common Cause and MoveOn.org—launched the SavetheInternet.com Coalition, a broad-based initiative working to "ensure that Congress passes no telecommunications legislation without meaningful and enforceable network neutrality protections." Within two months of its establishment, it delivered over 1,000,000 signatures to Congress in favor of net neutrality policies and by the end of 2006, it had collected more than 1.5 million signatures.

Two proposed versions of "neutrality" legislation were to 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 were sponsored by Representatives Markey, Sensenbrenner, et al., and Senators Snowe, Dorgan, and Wyden.

In 2006 Congressman Adam Schiff (D-California), one of the Democrats who voted for the 2006 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."[111] Net neutrality bills were referred to the Senate Committee on Commerce, Science, and Transportation, whose Committee Chair until 2014, Jay Rockefeller (D-West Virginia) had expressed caution about introducing unnecessary legislation that could tamper with market forces.

The following legislative proposals have been introduced in Congress to address the net neutrality question:

Title Bill number Date introduced Sponsors Provisions Status
109th Congress of the United States (January 2005 – January 2007)
Internet Freedom and Nondiscrimination Act of 2006[112][113] S. 2360 March 2, 2006 Senator 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.
  • Sets some guidelines for how ISPs and data operators should behave when managing their networks. It states it as, "bars network operators from degrading, altering, modifying, impairing, or changing any bits, content, application, or service; requires them to allow the attachment of devices that won't harm the network; directs them to offer just, reasonable, and nondiscriminatory rates, terms, and conditions on the offering or provision of any service by another person using the transmission component of communications; and directs them to make their rates, terms, and conditions publicly available in a manner that is transparent and easily understandable."[114]
  • The bill would also allow these operators to control any traffic that passes through their network, with the promise that it would be for the protection of the end-users. They would block content that falls under the categories of, "...ad ware, Spyware, malware, spam, pornography, content inappropriate for minors", "or any other similarly nefarious application or service that harms the Internet experience of subscribers..."[114] As a way to allow subscribers to have a voice over whether they think that what their content provider is correct or not, there would be a method for them to submit complaints. These complaints would go directly to the FCC for review over whether a violation has occurred. The FCC would have one week to run its investigation. Then, if there was in fact a violation, the FCC would have another 90 days to make a ruling. During this time, "Network operators would carry the burden of proof during the latter part of the complaint proceeding."[114]
 Killed by the end of 109th Congress.
Communications Opportunity, Promotion and Enhancement Bill of 2006[115][116][117] H.R. 5252 March 30, 2006 Representative 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.
  • To promote the deployment of broadband networks and services.[118]
  • Title IX establishes a number of rights for subscribers of Internet services in order to prevent an Internet Service Provider from undermining a consumer's experience on the Internet and from limiting the subscriber's ability to go wherever he or she wants on the Internet at whatever speed he or she purchased. In addition, this title would also provide consumers with the right to purchase stand-alone broadband service without having to purchase other services like video or phone service.[119]
 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.[120]
Network Neutrality Act of 2006[121] H.R. 5273 April 3, 2006 Representative Ed Markey (D-Massachusetts)
  • Amends the Communications Opportunity, Promotion, and Enhancement Act of 2006 (COPE) to make its existing neutrality provisions more strict.
  • To preserve and promote the open and interconnected nature of broadband networks that enable consumers to reach, and service providers to offer, lawful content, applications, and services of their choosing, using their selection of devices that do not harm the network; to encourage escalating broadband transmission speeds and capabilities that reflect the evolving nature of the broadband networks, including the Internet, and improvements in access technology, which enables consumers to use and enjoy, and service providers to offer, a growing array of content, applications, and services; to provide for disclosure by broadband network operators of prices, terms, and conditions, and other relevant information, including information about the technical capabilities of broadband access provided to users, to inform their choices about services they rely on to communicate and to detect problems; and to ensure vigorous and prompt enforcement of this Act's requirements to safeguard and promote competition, innovation, market certainty, and consumer empowerment.[121]
 Defeated 34–22 in committee with Republicans and some Democrats opposing, most Democrats supporting.[122]
Communications Opportunity, Promotion and Enhancement Bill of 2006[123] S. 2686 May 1, 2006 Senators Ted Stevens (R-Alaska) & Daniel Inouye (D-Hawaii) Aims to amend the Communications Act of 1934 and addresses net neutrality by directing the Federal Communications Commission (FCC) to conduct a study of abusive business practices predicted by the Save the Internet coalition and similar groups. Sent to 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[124] H.R. 5417 May 18, 2006 Representatives 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.
  • Amends the Clayton Act to prohibit any broadband network provider from: failing to provide its services on reasonable and nondiscriminatory terms; refusing to interconnect its facilities with those of another service provider on reasonable and nondiscriminatory terms; blocking, impairing, discriminating against, or interfering with any person's ability to use a broadband network service to access or offer lawful content, applications, or services over the Internet (or imposing an additional charge to avoid such prohibited conduct); prohibiting a user from attaching or using a device on the provider's network that does not physically damage or materially degrade other users' utilization of the network; or failing to clearly and conspicuously disclose to users accurate information concerning service terms.[125]
  • Requires a provider that prioritizes or offers enhanced quality of service to data of a particular type to prioritize or offer enhanced quality of service to all data of that type without imposing a surcharge or other consideration.[125]
  • Permits a provider to take reasonable and nondiscriminatory measures to: manage the functioning of its network and services; give priority to emergency communications; prevent a violation of federal or state law; offer consumer protection services; offer special promotional pricing or other marketing initiatives; or prioritize or offer enhanced quality of service to all data of a particular type without imposing a surcharge or other consideration.[125]
 Approved 20-13 by the House Judiciary committee on May 25, 2006. Killed by the end of 109th Congress.
110th Congress of the United States (January 2007 – January 2009)
Internet Freedom Preservation Act (casually known as the Snowe-Dorgan bill)[126] S. 215 (110th Congress) formerly S. 2917 (109th Congress) January 9, 2007 Senators Olympia Snowe (R-Maine) & Byron Dorgan (D-North Dakota), Co-Sponsors: Barack Obama (D-Illinois), Hillary Clinton (D-New York), John Kerry (D-Massachusetts) and other Senators
  • 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 but still allows prioritizing content that originates 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.
  • A bill to amend the Communications Act of 1934 to ensure net neutrality.[118]
  • Each broadband provider shall not block, interfere with, discriminate against, impair, or degrade the ability of any person to use a broadband service to access, use, send, post, receive, or offer any lawful content, application, or service made available via the Internet; not prevent or obstruct a user from attaching or using any device to the network of such broadband service provider, only if such device does not physically damage or substantially degrade the use of such network by other subscribers.[127]
 Read twice and referred to the U.S. Senate Committee on Commerce, Science, and Transportation.
Internet Freedom Preservation Act of 2008[128] H.R.5353 February 12, 2008 Representatives Edward Markey (D-Massachusetts) & Charles Pickering (R-Mississippi)
  • 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.[118]
  • To maintain the freedom to use broadband telecommunications networks, including the Internet, without unreasonable interference from or discrimination by network operators; enable the United States to preserve its global leadership in online commerce and technological innovation; promote the open and interconnected nature of broadband networks that enable consumers to reach, and service providers to offer, content, applications, and services of their choosing; and guard against unreasonable discriminatory favoritism for, or degradation of, content by network operators based upon its source, ownership, or destination on the Internet.[129]
  • Requires the Federal Communications Commission (FCC) to commence a proceeding on broadband services and consumer rights, including assessing whether broadband network providers to refrain from unreasonably interfering with the ability of consumers to access, use, send, receive, or offer content, applications, or services of their choice, and attach or connect their choice of devices; and add charges for quality of service to certain Internet applications and service providers.[129]
 Introduced to the House Energy and Commerce Committee
111th Congress of the United States (January 2009 – January 2011)
Internet Freedom Preservation Act of 2009[130][131] H.R.3458 2009 –
  • To amend the Communications Act of 1934 to establish a national broadband policy, safeguard consumer rights, spur investment and innovation, and for related purposes.[118]
  • Makes it the duty of each Internet access service provider to: not block, interfere with, discriminate against, impair, or degrade the ability of any person to use an Internet access service; not impose certain charges on any Internet content, service, or application provider; not prevent or obstruct a user from attaching or using any lawful device in conjunction with such service, provided the device does not harm the provider's network; offer Internet access service to any requesting person; not provide or sell to any content, application, or service provider any offering that prioritizes traffic over that of other such providers; and not install or use network features, functions, or capabilities that impede or hinder compliance with these duties.[132]
  • It excludes reasonable network management from regulation, but because it doesn't contain technical specifications to describe "reasonable network management" schemes, it remains unclear what degree of autonomy network operators would have in managing traffic.[133]
 –
112th Congress of the United States (January 2011 – January 2013)
Data Cap Integrity Act of 2012[134] S. 3703 December 20, 2012 Senator Ron Wyden (D-Oregon) To improve the ability of consumers to control their digital data usage, promote Internet use, and for other purposes. Read twice and referred to the Committee on Commerce, Science, and Transportation.
(D) = a member of the House or Senate Democratic Caucus; (R) = a member of the House or Senate Republican Conference

Positions

There has been extensive debate about whether net neutrality should be required by law in the United States. Debate over the issue predates the coining of the term. Advocates of net neutrality have raised concerns about the ability of broadband providers to use their last mile infrastructure to block Internet applications and content (e.g. websites, services, and protocols), and even to block out competitors.[135] While opponents claim net neutrality regulations would deter investment into improving broadband infrastructure and try to fix something that isn't broken.[136][137]

Only a few U.S. technology trade associations and the U.S. financial sector were neutral as of 2006.[138]

In 2014 Professor Susan Crawford, a legal and technology expert at Harvard Law School suggested that municipal broadband might be a possible solution to net neutrality concerns.[139]

Support of net neutrality

Organizations that support net neutrality come from widely varied political backgrounds and include groups such as MoveOn.org, Free Press, Consumer Federation of America, AARP, American Library Association, Gun Owners of America, Public Knowledge, the Media Access Project, the Christian Coalition, and TechNet.[140][141][142] Tim Berners-Lee (the inventor of the World Wide Web) has also spoken out in favor of net neutrality.[143] In May 2014, some websites admitted to inserting code that slowed access to their site by users from known FCC IP addresses, as a protest on the FCC's position on net neutrality.[144]

Proponents of net neutrality, in particular those in favor of reclassification of broadband to "common carrier", have many concerns about the potential for discriminatory service on the part of providers such as Comcast. Common-carriage principles require network operators to serve the public regardless of geographical location, district income levels, or usage. Telecommunications companies are required to provide services, such as phone access, to all consumers on the premise that it is a necessity that should be available to all people equally. If the FCC's ability to regulate this aspect is removed, providers could cease to offer services to low income neighborhoods or rural environments. Those in favor of net neutrality often cite that the internet is now an educational necessity, and as such should not be doled out at the discrimination of private companies, whose profit-oriented models cause a conflict of interest.

Outside of the US several countries have removed net neutrality protocols and have started double charging for delivering content (once to consumer and again to content providers). This equates to a toll being required for certain internet access, essentially limiting what is available to all people, in particular low income households.[145]

Large already well established companies may not be hurt by the cost increase that providers such as Comcast intend to levy upon them, but it would permanently stifle small businesses and the internet's ability to encourage start-ups.[146] Many have pointed out that sites such as Facebook, Google, and Amazon would not have been able to survive if net neutrality hadn't been in place.[147] Concerns abound as to what kind of long term damage would be inflicted on future website innovations, including educational content such as MIT's OpenCourseWare which is a free website offering online video lectures to the public.[148]

Internet was created to be a free and open exchange.”[149]

For Conti, he sees the children's education is at stake and that lessons that incorporate the use of the internet are under risk since charter schools like Conti and public schools may not afford the Internet and in additions families may not be able to afford Internet at home for their children's educational needs. Students from virtual charter schools, public schools, children with special needs and homeschool children all depend mostly on web instructions, according to Charamonte.[149]

Barbara Stripling, the president American Library Association stated that “An open Internet is essential to our nation’s educational achievement, freedom of speech and economic growth,” [149] According to Barbara, “School, public and college libraries rely upon the public availability of open, affordable Internet access for school homework assignments, distance learning classes, e-government services, licensed databases, job-training videos, medical and scientific research, and many other essential services, we must ensure the same quality access to online educational content as to entertainment and other commercial offerings.” [149]

Not all net neutrality proponents emphasize transparency to customers, and most proponents do not phrase net neutrality in terms of existing telecom carrier restrictions even when the desired state is equivalent. In many cases, a return to treating Internet service links as telecommunication rather than information carrier services would re-invoke sufficient restrictions on discrimination and refusal to carry to satisfy most definitions of net neutrality and would return carriers to the conditions of limited liability that were in part breached by the 2005 FCC decision that DSL services are information services, and thus not subject to common carrier rules.

Previously existing FCC rules do not prevent telecommunications companies from charging fees to certain content providers in exchange for preferential treatment (the so-called "fast lanes"). 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 Broadcasting v. Federal Communications Commission.[150]

Net neutrality proponents claim that telecom companies seek to impose a tiered service model in order to control the pipeline and thereby remove competition, create artificial scarcity, and oblige subscribers to buy their otherwise noncompetitive services.[151] Many believe net neutrality to be primarily important for the preservation of current internet freedoms; a lack of net neutrality would allow Internet service providers, such as Comcast, to extract payment from content providers like Netflix, and these charges would ultimately be passed on to consumers.[152][153] Prominent supporters of net neutrality include Vinton Cerf, co-inventor of the Internet Protocol, Tim Berners-Lee, creator of the Web, law professor Tim Wu, Netflix CEO Reed Hastings, Tumblr founder David Karp, and Last Week Tonight host John Oliver.[154][155][156][157] Organizations and companies that support net neutrality include the American Civil Liberties Union, the Electronic Frontier Foundation, Greenpeace, Tumblr, Kickstarter, Vimeo, Wikia, Mozilla Foundation, and others.[151][158][159][160]

Opposition to net neutrality

Opponents argue that (1) net neutrality regulations severely limit the Internet's usefulness; (2) net neutrality regulations threaten to set a precedent for even more intrusive regulation of the Internet; (3) imposing such regulation will chill investment in competitive networks (e.g., wireless broadband) and deny network providers the ability to differentiate their services; and (4) that network neutrality regulations confuse the unregulated Internet with the highly regulated telecom lines that it has shared with voice and cable customers for most of its history; (5) net neutrality would benefit industry lobbyists, and not consumers due to the potential of regulatory capture with policies that protect incumbent interests.[161]

Organizations opposing net neutrality are the free-market advocacy organizations FreedomWorks Foundation,[162] Americans for Prosperity, the National Black Chamber of Commerce, LULAC, the Competitive Enterprise Institute, the Progress and Freedom Foundation and high-tech trade groups, such as the National Association of Manufacturers. For example, former hedge fund manager turned journalist Andy Kessler has argued, the threat of eminent domain against the telecommunication providers, instead of new legislation, is the best approach by forcing competition and better services.[163] The Communications Workers of America, the largest union representing installers and maintainers of telecommunications infrastructure, opposes the regulations.

A number of net neutrality opponents have created a website called Hands Off The Internet to explain their arguments against net neutrality. Principal financial support for the website comes from AT&T, and members include technology firms such as Alcatel, 3M and pro-market advocacy group Citizens Against Government Waste.[164][165][166][167] Many conspiracy theorists allege corporate astroturfing.[164] For example, one print ad seems to frame the Hands Off the Internet message in pro-consumer terms. "Net neutrality means consumers will be stuck paying more for their Internet access to cover the big online companies' share," the ad claims.[168]

In November 2005 Edward Whitacre, Jr., then chief executive officer of SBC Communications, stated "there's going to have to be some mechanism for these [Internet upstarts] who use these pipes to pay for the portion they're using", and that "The Internet can't be free in that sense, because we and the cable companies have made an investment,"[169] sparking a furious debate. SBC spokesman Michael Balmoris said that Whitacre was misinterpreted and his comments only referred to new tiered services.[170]

Net neutrality laws are generally opposed by the cable television and telephone industries, and some network engineers and free-market scholars from the conservative to libertarian, including Christopher Yoo and Adam Thierer.

Net neutrality opponents such as IBM, Intel, Juniper, Qualcomm, and Cisco claim that net neutrality would deter investment into broadband infrastructure, saying that "shifting to Title II means that instead of billions of broadband investment driving other sectors of the economy forward, any reduction in this spending will stifle growth across the entire economy. Title II is going to lead to a slowdown, if not a hold, in broadband build out, because if you don’t know that you can recover on your investment, you won’t make it." [136][171] Others argue that the regulation is "a solution that won’t work to a problem that simply doesn’t exist".[172] Prominent opponents also include Netscape founder and venture capitalist Marc Andreessen, co-inventor of the Internet Protocol Bob Kahn, PayPal founder and Facebook investor Peter Thiel, MIT Media Lab founder Nicholas Negroponte, Internet engineer and former Chief Technologist for the FCC David Farber, VOIP pioneer Jeff Pulver and Nobel Prize economist Gary Becker.[173][174][175][176][177] Organizations and companies that oppose net neutrality regulations include several major technology hardware companies, cable and telecommunications companies, hundreds of small internet service providers, various think tanks, several civil rights groups, and others.[136][178][179][180][181]

Critics of net neutrality argue that data discrimination is desirable for reasons like guaranteeing quality of service. Bob Kahn, co-inventor of the Internet Protocol, called the term net neutrality a slogan and opposes establishing it, but he admits that he is against the fragmentation of the net whenever this becomes excluding to other participants.[173] Vint Cerf, Kahn's co-founder of the Internet Protocol, explains the confusion over their positions on net neutrality, "There’s also some argument that says, well you have to treat every packet the same. That’s not what any of us said. Or you can’t charge more for more usage. We didn’t say that either."[182]

Alternative FCC proposals

An alternate position was proposed in 2010 by then-FCC Commissioner Julius Genachowski, which would narrowly reclassify Internet access as a telecommunication service under Title Two of the Communications Act of 1934. It would apply only six[183] common carrier rules under the legal principle of forbearance that would sufficiently prevent unreasonable discrimination and mandate reasonable net neutrality policies under the concept of common carriage. Incumbent ISP AT&T opposed the idea saying that common carrier regulations would "cram today's broadband Internet access providers into an ill-fitting 20th century regulatory silo" while Google supported the FCC proposal "In particular, the Third Way will promote legal certainty and regulatory predictability to spur investment, ensure that the Commission can fulfill the tremendous promise of the National Broadband Plan, and make it possible for the Commission to protect and serve all broadband users, including through meaningful enforcement".[184]

In October 2014, after the initial proposal was shot down, the FCC began drafting a new proposal that would take a hybrid regulatory approach to the issue. Although this alternative has not yet been circulated, it is said to propose that there be a divide between "wholesale" and "retail" transactions.[185] In order to illustrate clear rules that are grounded by law, reclassification of Title II of the Communications Act of 1934 will be involved as well as parts of Section 706 of the Telecommunications Act of 1996. Data being sent between content provider and ISPs will involve stricter regulations compared to transactions between ISP's and consumers, which will involve more lax parameters. Restrictions on offering a data fast lane will be enforced between content providers and ISPs to avoid unfair advantages. This hybrid proposal has become the most popular solution among the three options that FCC has reported. However, ISPs, such as AT&T who has already warned the public via tweet "any use of Title II would be problematic", are expected to dispute this solution.[185] The official proposal was rumored to become public by the end of 2014.[186]

Opinions cautioning against legislation

In 2006 Bram Cohen, the creator of BitTorrent, said "I most definitely do not want the Internet to become like television where there's actual censorship... however it is very difficult to actually create network neutrality laws which don't result in an absurdity, like making it so that ISPs can't drop spam or stop... attacks."[187]

In June 2007, the US Federal Trade Commission (FTC) urged restraint with respect to new regulations proposed by net neutrality advocates, noting the "broadband industry is a relatively young and evolving one," and given no "significant market failure or demonstrated consumer harm from conduct by broadband providers" such regulations "may well have adverse effects on consumer welfare, despite the good intentions of their proponents."[188] The FTC conclusions were questioned in Congress in September 2007, when Sen. Byron Dorgan, D-N.D., chairman of the Senate interstate commerce, trade and tourism subcommittee, told FTC Chairwoman Deborah Platt Majoras that he feared new services as groundbreaking as Google could not get started in a system with price discrimination.[189]

In 2011 Aparna Watal, a legal officer at an Internet company named Attomic Labs, has put forward three points for resisting any urge "to react legislatively to the apparent regulatory crisis".[190] Firstly, "contrary to the general opinion, the Comcast decision does not uproot the Commission's authority to regulate ISPs. Section 201(b) of the Act, which was cited as an argument by the Commission but not addressed by the Court on procedural grounds, could grant the Commission authority to regulate broadband Internet services where they render "charges, practices and regulations for, and in connection with" common carrier services unjust and unreasonable."[190] Secondly, she suggests, it is "undesirable and premature to legislatively mandate network neutrality or for the Commission to adopt a paternalistic approach on the issue ... [as] there have been few overt incidents to date, and the costs of those incidents to consumers have been limited."[190] She cites "prompt media attention and public backlash" as effective policing tools to prevent ISPs from throttling traffic. She suggests that it "would be more prudent to consider introducing modest consumer protection rules, such as requiring ISPs to disclose their network management practices and to allow for consumers to switch ISPs inexpensively, rather than introducing network neutrality laws."[190] "While by regulating broadband services the commission is not directly regulating content and applications on the Internet", content will be affected by the reclassification. "The different layers of the Internet work in tandem with each other such that there is no possibility of throttling or improving one layer's performance without impacting the other layers. ... To let the Commission regulate broadband pipelines connecting to the Internet and disregard that it indirectly involves regulating the data that runs through them will lead to a complex, overlapping, and fractured regulatory landscape in the years to come."[190]

Unresolved issues

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 much less reliable 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.

As of 2006 the debate over "neutrality" did not yet capture some dimensions of the topic; for example, if voice packets should get higher priority than packets carrying email or if emergency services, mission-critical, or life-saving applications, such as tele-medicine, should get priority over spam.[191] The discussion is terrestrial-network centered, even though the Internet is inherently global and mobility is the fastest growing source of new demand.

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

Cable companies, in response 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.

In 2006 it has been proposed 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.[192]

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

Utility company restrictions

EPB, the municipal utility serving Chattanooga, Tennessee, petitioned the FCC to allow them to deliver internet to communities outside of the 600-square mile area that they service.[193] A similar petition was made by Wilson, North Carolina. According to FCC officials, some residents who lived just outside the service areas of the Chattanooga and Wilson utilities then had no broadband service available.[97] One of the two February 26, 2015 rulings set aside those states' restrictions on municipal broadband, although legal challenges to the FCC's authority to do so were seen as likely.[97] At the time of the ruling, 19 U.S. states had laws that made it difficult or impossible for utility companies to deliver internet outside of the area that they service.

See also

References

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