Academic journal article Brigham Young University Law Review

Saving the Internet: Why Regulating Broadband Providers Can Keep the Internet Open

Academic journal article Brigham Young University Law Review

Saving the Internet: Why Regulating Broadband Providers Can Keep the Internet Open

Article excerpt


"Net Neutrality" has become a hot topic in the last few years, but the term has gained traction and popularity since the last court decision in Verizon v. FCC. 1 The term Net Neutrality was first coined in 2003 by Columbia Law School professor Tim Wu.2 Net Neutrality is the principle that Internet providers ("broadband providers") should allow access to all content and applications equally, irrespective of what the source of the content is.3 Net Neutrality also prohibits broadband providers from favoring or blocking certain services or websites,4 thus, making the Internet an open platform for the dissemination and access of content. Under Net Neutrality, creators of content and applications ("edge providers") freely disseminate content on one end and consumers ("end users") freely access that content on the other.

Tim Wu argues that Net Neutrality is the end result we should be concerned with achieving, and suggests that the best remedy is a "network neutrality" policy that allows for competition amongst the people and organizations that disseminate their content through the Internet.5 Proponents of Net Neutrality argue that an open-access regime will lead to better information, more innovation and investment in Internet infrastructure, and preservation of freedom of speech and freedom to access that speech. Opponents of Net Neutrality argue that a neutral network would have the opposite effect and actually decrease innovation and investment. In addition, opponents, many of them broadband providers, argue that broadband providers have a right to control what content goes through their systems.

The discussion over Net Neutrality has been ongoing for some time, at least since 2003 when the Federal Communications Commission (FCC) first considered how to properly regulate Digital Subscriber Line (DSL) and broadband providers.6 The issue has centered around two questions: first, what are the limits broadband providers can put on the information that passes through their lines? For example, can broadband providers block applications that compete with their own services, can they prioritize traffic based on affiliations with edge providers or based on how much edge providers pay broadband providers? Second, how can the FCC regulate broadband providers and how much authority does the agency have to restrict broadband providers' behavior?

Opponents of Net Neutrality had a partial win in January of 2014 when the United States Court of Appeals for the District of Columbia held in Verizon v. FCC that the FCC could not impose anti-discrimination nor anti-blocking restrictions on broadband providers.7 This decision significantly reduced the FCC's ability to promote and ensure Net Neutrality. However, proponents of Net Neutrality have not lost entirely. The Court's decision also upheld the FCC's authority to regulate broadband providers, just not through the anti-blocking and anti-discrimination rules the Court reviewed.8 By affirming the FCC's regulatory authority, the Court made it clear that the FCC can regulate broadband providers as long as the FCC's regulations stay within its statutory authority.9 The best way for the FCC to regulate broadband providers in order to promote and ensure an open Internet is by reclassifying broadband providers as common carriers subject to regulation under Title II of the Communications Act of 1934.

After briefly discussing the history of Net Neutrality and the events that led to Verizon v. FCC, Part II of this Paper focuses on the D.C. District Court's January 2014 holding that the FCC can regulate as long as it does so within its authority. Using that rule as a framework, this Paper argues that in its most recent ruling, the FCC correctly reclassified broadband providers as common carriers, concluding that this reclassification is the right path for several reasons. First, Section III.A argues that broadband providers fall within the definition of a common carrier. …

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