Understanding network neutrality

Abstract

The idea of network neutrality has dominated telecommunication policy discussions over the past few years to an extent unprecedented in the history of that subject matter. In March 2015, the Federal Communications Commission (“FCC”) issued a detailed scheme of regulation that makes network neutrality the law of the land, via a regulatory framework called the Open Internet Order. The path by which the FCC arrived at the Order was anything but direct, and the fate of the Order is yet to be decided by the courts. This chapter offers a guide through the thorny paths of network neutrality. The chapter begins with a review of the historical precursors to network neutrality regulation, starting with a 1956 court decision that disapproved an effort by AT&T to ban the attachment of non-harmful devices to the phone system, and continuing through FCC rulemakings in the 1960s and 1970s that governed the participation of telephone companies in the provision of services that involved processing of data. These competition-enhancing rules led to a 2005 FCC policy statement that set forth a set of principles that the FCC would apply to ensure that Internet service providers would not be able to distort competition by discriminating against particular content, applications, or non-harmful devices. The principles underlying the policy statement were then implemented in a 2010 rule. In a 2014 decision, the D.C. Circuit invalidated the Order as inconsistent with the FCC's statutory authority. The FCC thereupon initiated a new rulemaking, which resulted in its issuance of a new Open Internet Order in 2015. As of the writing of this chapter, a challenge to the 2015 Order is pending before the D.C. Circuit.The chapter continues by analyzing the content of the 2015 Order, placing it in the context of its historical antecedents. It concludes by addressing several objections that opponents of network neutrality regulation have raised to network neutrality regulation.