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As previously discussed here, the FCC recently chided Comcast for interfering with the flow of data packets to its customers based on the content of those packets — a violation of the principle of “network neutrality.” Net neutrality is an important value, but it isn’t the law. In fact, while it’s easy to give some examples of violations of the principle — delivering email from the RNC more efficiently than email from the DNC, let’s say — it’s actually hard to give a detailed, operationally useful definition, one that is clear about all possible service proposals Internet Service Providers might propose. Nonetheless, the FCC declared, on a split vote, that what Comcast was doing was plainly wrong.

Comcast has now filed a challenge to the FCC’s ruling. Part of its argument is on the details, but part of it is on the law: Comcast claims that Congress never gave the FCC authority to regulate the Internet.

Much as I applaud the FCC ruling, Comcast may actually be right about the FCC’s lack of authority. The laws may just be too old to have anticipated the importance of Internet communication and to embrace this technology in its definitions. If so, this case could be a 21st century reprise of Herbert Hoover’s struggles with radio broadcasters, the courts, and Congress in the 1920s, to gain control over the radio waves (a story we tell in Chapter 8).

Rather than explaining what’s at stake in my own words, I’ll just close by quoting a blog post from law professor Susan Crawford from a couple of weeks ago.

The network access providers [would] like to be able to charge what the market will bear for each Internet transmission, watching carefully what people are doing and choosing how to treat particular traffic.  The FCC’s action last Friday, while a noble and necessary first step, won’t make that kind of behavior illegal.  We need structural change to the law that will allow Americans’ instincts about the importance of basic nondiscriminatory transport to shape legal reality.

It looks as if public concerns about private discrimination have once again mounted towards the place that drove this country to adopt the original paradigm of regulation in the telecommunications field: administrative oversight of an industry providing nondiscriminatory services.  That paradigm disappeared in a rush of deregulatory fervor over the last twenty years or so, leaving all general-purpose communications services private and free to discriminate.  Traditional phone services (which aren’t allowed to discriminate) are disappearing, as people drop their home phone subscriptions and companies rip out regulated copper wires.

Over the same period of time, there has been tremendous consolidation in the network access provider market.  Most Americans have very few choices when it comes to buying highspeed Internet access.

The battle over nondiscriminatory Internet access is far from over.  But the outcome of this initial skirmish is the right one for our shared future.

This entry was posted on Friday, September 5th, 2008 at 2:21 pm and is filed under The role of government—laws and regulations. You can follow any responses to this entry through the RSS 2.0 feed. Both comments and pings are currently closed.