Net Neutrality and the Comcast Decision

May 14, 2010

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  • What is Net Neutrality and why is it important?
  • What did the Comcast decision do?
  • What are the Commission’s options after the decision?
  • How would you go about researching any of this?

Net Neutrality refers to the concept that Internet Service Providers should not be allowed to discriminate based on the content or type of information passing through their system.  For example if you purchase Internet access through your cable company, they could not reduce ‘throttle’ your bandwidth when you download video from another legitimate source.

The F.C.C. has indicatedits intention to promote the ‘Open Internet’ embracing the principles of Net Neutrality.   When Comcast began limiting the bandwidth of customers who used peer to peer networks to share data a complaint was filed with the F.C.C. and the F.C.C. orderedComcast to stop.  Comcast then petitioned for a review of this order and the D.C. Circuit Court, in Comcast Corp. v. F.C.C. determined that the F.C.C. lacked the authority to regulate Comcast’s ‘network management practices.’  This was based on, among other reasons, the F.C.C.’s classificationof cable internet providers as ‘information service’ rather than a telecommunication service subject to the common carrier regulations.

The F.C.C. was then seemingly left with two options, abstain from applying the common carrier regulations to cable internet providers, or to reclassify them in order to invoke the regulations.  The first option would not meet the F.C.C.’s open internet goal.  The second option, reclassifying cable internet provides as ‘telecommunications services’ would subject to the full suite of regulations designed for the telephone industry which are not a good fit for a cable company.  The Commission recently announced that it preferred a third waywhich would bifurcate the regulation of cable internet provides, regulating the broadband internet service as a common carrier, while not applying the full gamut of regulations to the cable companies.

Researching this type of Administrative regulatory action can be difficult.  Finding requests for comments, proposed, and final regulations in the Federal Register can be daunting on its own.  Fortunately, this issue has some unique terminology. Try the following in the Federal Register (FR):

 (net /2 neutrality) (open /3 internet) & f.c.c.

However ,what about statement from the F.C.C. like the Third Way above?  For many federal agencies, Westlaw has created specific databases to search for these materials.   For F.C.C. documents like the one above, search the Federal Communications – FCC Record (FCOM-FCC) database. 

Finally issues like this, where you may not know exactly where to begin are a great time to try out WestlawNext.  The global search capability of WestlawNext allows you to pull up relevant cases, statutes, regulations, decisions, and proposed actions all in one search.  Because of the unique terms on this topic I used the ‘strict’ command to run a terms and connectors search in WestlawNext:  strict: F.C.C. & “net neutrality” “open internet” now I can choose from all the categories on the left, including proposed legislation  or Administrative Decisions & Guidance.  In the Administrative Decisions content, I simply resorted my results by date bringing A THIRD-WAY LEGAL FRAMEWORK FOR ADDRESSING THE COMCAST DILEMMA to the top of the list.