The Evolution of Net Neutrality

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The issue of net neutrality emerged almost a decade ago when the FCC adopted a policy ascribing to the four principles of network neutrality. This policy stated that consumers are entitled to:
  • access the lawful Internet content of their choice.
  • run applications and use services of their choice, subject to the needs of law enforcement.
  • connect their choice of legal devices that do not harm the network.

  • competition among network providers, application and service providers, and content providers.

In simplest terms, net neutrality is the tenet that all internet traffic should be treated equally. Net neutrality advocates believe that internet service providers should not be able to restrict certain types of internet traffic on their networks.  While seemingly a simple concept, the evolution of technology, applications, and devices and the ensuing voracious bandwidth consumption have forced the FCC to devise a strategy to ensure an open Internet for Americans, while providing a path for providers to manage their networks.  Specifically - ensuring Americans have unimpeded access to the broadband capacity purchased from a provider, while creating rules for "interconnection" or peering agreements between ISP's and content providers.

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The issue of net neutrality is certainly not one that has just emerged under Chairman Wheeler's tenure.

  Chairman Wheeler's predecessor, Julius Genachowski was dealt a blow early in his term as Chair when the Courts asserted that the FCC exceeded their authority to regulate the Internet by  ruling that Comcast violated these principles by restricting traffic requiring large amounts of bandwidth from passing through their network, so that other customers had adequate bandwidth to use.

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Comcast challenged the FCC's authority to regulate the internet, and the United States Court of Appeals for the D.C. Circuit agreed in a controversial decision against the FCC. As a result, the FCC intensified efforts to reclassify broadband as a telecommunications service in order to assert its authority to continue regulating use of the internet.

In 2010 FCC Chairman Julius Genachowski hoped that Congress would tackle the issue of net neutrality.  With the House firmly under Republican control and a public stance largely against the issue, this didn't happen. This resulted in the FCC approving new rules banning cable television and telephone service providers from preventing access to competitors or certain web sites such as Netflix. The rules also included restrictions for wireless providers, and did not prevent ISPs from charging higher fees for faster access. Even as the FCC announced the new rules, Republicans in Congress were talking about reversing the rules through legislation.

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It wasn't too long before legal challenges were filed in federal court by Verizon Communications Inc. The Verizon suit was filed in the Court of Appeals for the District of Columbia Circuit, which was the same court which ruled against the FCC in the Comcast case. Verizon even emphasized that the Comcast case is the basis for their lawsuit.

At the time, FCC Chairman Julius Genachowski defended the necessity of regulations.

"Over the course of this proceeding we have heard from so many entrepreneurs, engineers, venture capitalists and others working daily to maintain U.S. leadership in innovation. Their message has been clear: the next decade of innovation in this sector is at risk without sensible rules of the road."

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The rules of the road entailed a case by case review of complaints about unfair network management practices. The FCC would implement a streamlined complaint process, with providers required to inform consumers about their network management practices. The entire set of regulations was based on the FCC's interpretation of its authority to enforce them. Congress has also directed the FCC to deploy and measure broadband deployment and ensure competition. Section 706 of the Telecommunications Act of 1996 details the explicit authority to ??encourage the deployment on a reasonable and timely basis? of ??advanced telecommunications capability? to all Americans.
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