A Point of View : Net Neutrality Regulation in the United States

The United States moved closer to Net Neutrality regulation this year when the Federal Communications Commission found that Comcast, a cable broadband Internet service provider, violated a set of Internet policy principles the FCC adopted in 2005 by limiting peer-to-peer (P2P) traffic. The ruling was the culmination of a ten-year effort that began as a call for wholesale open access to the cable platform for third-party Internet service providers. I have written elsewhere on legal and procedural flaws that may doom the Network Management Order (See, e.g., Barbara Esbin, The Law is Whatever the Nobles Do: Undue Process at the FCC, http://www.pff.org/issues-pubs/pops/2008/pop15.12undueprocess.pdf). [1] In summary: (1) the FCC has not been granted explicit authority to regulate the provision of broadband information services; (2) the ancillary jurisdiction on which the FCC relied was not reasonably related to its other statutorily mandated responsibilities; (3) having failed to adopt enforceable rules concerning broadband network management, the FCC could not lawfully subject Comcast to an adjudication concerning its practices; and (4) the Complaint filed against Comcast was defective in several respects and should have been dismissed.The Network Management Order has been appealed by Comcast and several advocacy groups. Comcast challenges the basis on which the FCC found that it had violated federal policy in the absence of pre-existing legally enforceable rules. The advocacy groups appealed the FCC's failure to order Comcast to immediately cease and desist interfering with P2P traffic. The appeals have been consolidated and will be heard by the D.C. Circuit Court of Appeals, a court that has shown little patience for the FCC's unusual procedures and the FCC's use of the doctrine of ancillary jurisdiction to expand its reach. Meanwhile, several network operators have announced bandwidth caps or plans to implement them