Since its beginning, the Internet has always been an important means of communication. The concept of Net neutrality, also known as Internet Neutrality, Network Neutrality, Internet or Net Equality, or Internet Openness, is the principle “that Internet service providers and governments should treat all data on the internet equally, not discriminating or charging differentially by user, content, site, platform, application, type of attached equipment, or mode of communication.” Net Neutrality is an important component of an “Open Internet”, where policies such as equal treatment of data and open web standards allow those using the Internet to communicate and conduct business easily without interference. A closed Internet is the opposite, one where corporations or governments favor and may even restrict certain uses.
Importantly, on February 26, 2015, the United States Federal Communications Commission (“FCC”) commissioners approved proposed “bright-line” rules banning Internet service providers (“ISPs”) from blocking legal content, manipulating Internet traffic speeds, and imposing paid prioritization. Also, these new rules will now regulate mobile ISPs (smart phones) the same as home ISPs (cable and DSL), no longer exempting them from Net Neutrality enforcement. The FCC has reclassified Internet providers as “common carriers,” providing basic telecommunications service under Title II of the Communications Act of 1934, as do hard line telephone service providers. This allows the FCC authority to implement and enforce “bright-line” Open Internet regulations on ISPs. The FCC received almost 4 million public comments from consumers in support of these rules and the authority to keep the Internet open.
Congress charged the FCC with protecting “the public interest, convenience, and necessity” of our nation’s communication networks.
In June 2005, the U.S. Supreme Court upheld a determination by the FCC that cable Internet providers were an “information service,” and not a “telecommunications service,” thereby having less requirements placed on them. National Cable & Telecommunications Ass’n v. Brand X Internet Services, 5459 U.S. 967 (2005).
In August 2005, the FCC adopted its Policy Statement (FCC 05-151) regarding Network Neutrality which established four guidelines to preserve and promote an open and interconnected Internet:
1) Consumers are entitled to access lawful Internet content of their choice;
2) Consumers are entitled to run applications and use services of their choice, subject to the needs of law enforcement;
3) Consumers are entitle to connect their choice of legal devices that do not harm the network; and
4) Consumers are entitled to competition between [choice in] network providers, application and service providers, and content providers.
In 2008, the FCC decided to enforce its open Internet guidelines by issuing a non-monetary sanction against Comcast for violating the agency’s open Internet guidelines, which were meant to force cable and DSL (broadband) ISPs to treat all network traffic equally, so as not to put any Web site at a disadvantage. Comcast had been slowing traffic to a popular file-sharing site, what is known as peer-to-peer or P2P traffic. Comcast appealed the FCC sanction on the grounds that the FCC’s action was outside the scope of its authority. In April 2010, the U.S. Court of Appeals for the D.C. Circuit ruled that the FCC held some jurisdiction over ISPs, but not enough to make its actions against Comcast permissible. The court based its ruling on the FCC having already classified broadband Internet providers as “information services,” providing “enhanced” services, not as “common carriers”, providing “basic” services. Comcast Corp. v. FCC, 600 F.3d 642 (D.C. Cir. 2010).
In response to the Comcast Corp. decision, in December 2010, the FCC issued Net Neutrality rules, Open Internet Order 2010, which imposed transparency (disclosure of network management practices, performance characteristics, and terms and conditions of services), no blocking (prohibited from blocking lawful content, applications, or services) and no discrimination (prohibited from prioritizing certain Internet traffic).
These requirements provided a level playing field, for example: the expression and ideas of a mega-corporation were not to load any faster than those of a smaller one. However, this basic principle, that all sites have equal access to reach people through the same Internet, immediately was challenged by Verizon, who less than one month later, filed suit.
In January 2014, the U.S. Court of Appeals for the D.C. Circuit ruled that the FCC did not have authority to impose the no blocking and no discrimination components, since the FCC had previously classified broadband providers as “information services” under Title I of the Communications Act of 1934, not as “common carriers” under Title II. However, the court upheld the transparency component of the 2010 Open Internet Order, since it was not dependent on broadband providers being classified as ‘common carriers.” The court also agreed that broadband providers represent a threat to Internet Openness and could hinder future Internet development without at least rules similar to those in the 2010 Open Internet Order and suggested the FCC change its regulations to accomplish this. Verizon v. FCC, 740 F.3d 623 (D.C. Cir. 2014).
In response to the Verizon decision, the FCC decided not to appeal the decision, but instead to establish new rules for transparency, no blocking, and no discrimination. The FCC also opened a new proceeding asking for general public comment on how to best protect and promote an open Internet. Almost 4 million public comments were received from consumers in support of Open Internet regulations. FCC Chairman Tom Wheeler proposed the FCC do this with “bright-line rules” banning ISPs from blocking legal content, manipulating Internet traffic speeds, and imposing paid prioritization. He also proposed ending regulating mobile ISPs differently than home ISPs, no longer exempting them from Net Neutrality enforcement. It was these rules that were approved by FCC commissioners on February 26, 2015.