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FCC proposals continue to spark net neutrality debate

Recent FCC proposals have led to contentious net neutrality debates, as stakeholders remain concerned about how they will change broadband services.

A Federal Communications Commission's decision to consider allowing ISPs to charge fees for prioritized Internet access remained relatively under the radar until comedian John Oliver's bit on net neutrality struck a nerve with viewers of his HBO show Last Week Tonight. The resulting outcry crashed the FCC's online commenting system when Oliver laid bare the essence of a debate that had occupied regulators, lobbyists, lawmakers and other politicians for more than a decade.

At the core of the net neutrality debate is a simple, yet high-stakes, question: Can the companies that control the Internet's delivery mechanisms use the prices they charge to also control the performance quality and speed of content, applications and other online services?

This FAQ is part of SearchCompliance's IT Compliance FAQ series.

What are net neutrality and an open Internet?

Net neutrality is the principle that broadband providers (sometimes called "Internet Service Providers" or ISPs) must treat all Internet traffic equally. In other words, nobody who provides legal Internet content may be discriminated against in the way their content is delivered to consumers.

Net neutrality was first defined in 2003 by Columbia University School of Law professor Tim Wu, who said the term is best defined as a design principle: "The idea is that a maximally useful public information network aspires to treat all content, sites and platforms equally," Wu said.

Broadband providers are the large cable and telephone companies that control the "pipes" of the Internet. Under the net neutrality principle, they cannot block legal content and they cannot charge higher prices to deliver Internet traffic from one source faster than traffic from others. They also cannot charge companies that sell content, applications, services or devices (collectively known as "edge providers") a premium for priority access to consumers, and they may not degrade the performance of non-prioritized websites or other content.

Net neutrality advocates maintain that this principle underpins the Internet's essence, and that it is necessary to prevent the World Wide Web from becoming a corporate-controlled, tiered environment where deep-pocketed companies pay a toll to use fast lanes while everyone else waits in the slow lane.

The FCC uses the term "open Internet" instead of "net neutrality." The FCC's Open Internet initiatives encompass issues that go beyond how broadband providers treat traffic from different sources. These initiatives also focus on maintaining free, publicly available standards and enforcing transparency in broadband provider operations.

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Does the U.S. government enforce net neutrality?

In 2004, the FCC made its first foray into the net neutrality debate when it indicated that cable or phone companies that did not provide "neutral" access would be punished. In 2010, the FCC issued the Open Internet Order, prohibiting broadband providers from blocking or unreasonably discriminating against certain content. The rules do not pertain to enterprise services, Internet traffic exchange and specialized services.

Verizon Communications Inc. sued the commission over the Open Internet Order, and in early 2014 the U.S. Court of Appeals for the District of Columbia Circuit vacated the order's anti-blocking and anti-discrimination prohibitions. The court upheld the FCC's regulatory authority over broadband access service as well as its transparency rule requiring broadband providers to disclose network management practices, performance traits and service terms and conditions.

With the appeals court's decision in place, there is little regulatory recourse for edge providers that see net neutrality violations. They can, however, take their grievance to the courts by suing under antitrust laws.

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What do policy wonks mean when they refer to Title II and Section 706 as part of the net neutrality debate?

Title II of the Communications Act of 1934 establishes rules for common carriers that provide telecommunications services to create basic consumer protections measures. The Act requires common carriers to deliver service upon reasonable request and at a just and reasonable rate. It also requires them to provide services without "unjust or unreasonable discrimination in charges, practices, classifications, regulations, facilities or services."

The FCC considers telephone companies common carriers, but in 2002 it decided to classify broadband providers such as cable companies as "information service providers." As a result, broadband providers are not subject to Title II regulation.

Section 706 of the Telecommunications Act of 1996 authorizes the FCC to regulate broadband providers to promote competition in the local market and remove infrastructure investment. However, according to the U.S. Court of Appeals for the District of Columbia Circuit, the FCC has not shown that Section 706 authorizes the commission to impose anti-blocking and anti-discrimination requirements under its Open Internet Order.

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What new "open Internet" rules has the FCC proposed?

After the U.S. Court of Appeals for the District of Columbia Circuit vacated the anti-blocking and anti-discrimination rules of the commission's Open Internet Order, Chairman Tom Wheeler issued a new net neutrality proposal. In a 3-2 vote on May 15, 2014, the commission agreed to consider the proposal that potentially allows broadband providers to charge content providers a premium for priority delivery. Rather than prohibit unreasonable discriminatory behavior, the proposal suggested a process for resolving disputes over such behavior. It proposed naming an ombudsman to serve as a consumer watchdog, enhancing the existing transparency rule and re-instating the no-blocking rule.

The chairman's proposal drew immediate criticism from consumer advocates, large technology companies and his fellow commissioners. Calling it "a not-too-much-discrimination rule," Commissioner Ajit Pai said that the proposal allows for paid prioritization under murky circumstances. "It brings to mind a Texas politician's observation that there is nothing in the middle of the road but yellow stripes and dead armadillos," Pai said in a dissenting statement.

Commissioner Jessica Rosenworcel concurred with the chairman's proposal but voiced disagreement with the way -- and speed -- in which it was developed. "We cannot have a two-tiered Internet, with fast lanes that speed the traffic of the privileged and leave the rest of us lagging behind," Rosenworcel said in a concurring statement. "So I support net neutrality. But I believe the process that got us to this rulemaking today is flawed. I would have preferred a delay. I think we moved too fast to be fair."

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Is Congress considering any measures to protect net neutrality?

About a month after the FCC released its latest Open Internet proposal, Rep. Doris Matsui (D-Calif.) and Sen. Patrick Leahy (D-Vt.) introduced a bill to ban paid prioritization deals between broadband providers and content providers. The Online Competition and Consumer Choice Act would also ban broadband providers from giving preferential treatment to its own traffic or that of an affiliate.

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Let us know what you think about the story; email Ben Cole, site editor. For more regulatory compliance news and updates throughout the week, follow us on Twitter @ITCompliance.

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What do you think of the FCC's proposed changes to net neutrality and open Internet guidelines?
Really not a fan - this could potentially create a difficult situation for both providers and consumers, where people end up paying more to get the service they're receiving now, and it opens the door to abuse of the system by the most powerful players.