Academic journal article Journal of Corporation Law

FCC Authority Post-Comcast: Finding a Happy Medium in the Net Neutrality Debate

Academic journal article Journal of Corporation Law

FCC Authority Post-Comcast: Finding a Happy Medium in the Net Neutrality Debate

Article excerpt


With over 1.7 billion users, the Internet is an indispensable medium, and its increasing speed and ease of access encourage consumer demand.1 To date, the Internet's success story evolved free from complex government regulation.2 However, as the market for Internet service changes and Internet traffic increases, a growing number of consumers, scholars, and politicians fear that Internet service providers (ISPs) will alter the accessible, open, and neutral platform upon which the Internet was founded.3 Today, the future of the Internet and its historically open nature is the issue of a hotly contested debate known as net neutrality, the concept that all web content should be treated equally.4 Proponents and opponents of net neutrality are at odds over whether the government, via the Federal Communications Commission (FCC), should establish a regulatory regime to monitor ISPs' network management practices.5

On April 6, 2010, the D.C. Court of Appeals issued a decision, Comcast v. FCC, which would drastically change the course of the net neutrality debate and the future of the FCC's authority to regulate ISPs.6 This Note seeks to analyze the net neutrality debate in the aftermath of the Comcast decision by addressing the FCC's future authority to regulate. Part II of this Note will briefly discuss the nature of net neutrality, the current state of the broadband market, Congress and the FCC's past and present involvement with net neutrality, and the Comcast decision itself. Part III analyzes Comcast's impact on the net neutrality debate, the decision's implications for the FCC's current regulatory goals, the FCC's three proposed options for maintaining authority, and outlines some of the arguments made against expanding FCC authority. Finally, Part IV of this Note recognizes the role of a strong ISP market and offers an alternative approach that includes integrating the Federal Trade Commission's authority.


The concept of net neutrality and the discourse concerning Internet regulation involves a myriad of political, social, constitutional, jurisdictional, ideological, and market-based issues.7 Before addressing the Comcast decision and its impact on the FCC's authority to regulate, it is first important to understand the concept of net neutrality on a technical level, the current state of the broadband market, and the authority the FCC relied on prior to Comcast. This history will serve as a framework for understanding the court's decision in Comcast.

A. Net Neutrality

The Comcast decision is the most recent opinion in the growing debate over net neutrality and Internet regulation.8 The term "net neutrality" embodies the idea of a free and open Internet, one that prevents ISPs such as Comcast, AT&T, and others from using discriminatory network management practices against consumers.9 Net neutrality seeks to preserve ISPs' role as gateways to the Internet rather than gatekeepers.10 Today, Internet users have equal access to all websites, large and small.11 Put another way, all websites appear on a user's screen at the same speed and in the same manner.12

The potential for ISPs to use abusive network management practices has become a reality as demand for high-speed Internet service grows.13 Net neutrality proponents fear that large ISPs and telecommunications companies will create a "two-tiered" Internet,14 encouraging a pay-to-play mentality among content and application providers.15 These discriminatory network management practices may appeal to ISPs as a cost-effective solution to the increased traffic and congestion plaguing their shared networks.16

A rudimentary understanding of how information travels over the Internet is helpful in understanding the concept of net neutrality and discriminatory management practices. Information shared over the Internet is broken down into packets before users transmit it via cable and telephone lines. …

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