Ever since the issue of Net Neutrality first appeared on the national political stage in summer 2006, the ensuing debate has ranged from spirited to downright nasty. But one thing has remained constant: No real progress has been made one way or another.
However, after a mid-January call for comments from the Federal Communications Commission (FCC), all of that could change.
At stake is the ability of broadband providers to selectively speed up certain content on their networks. Telecom companies framed the idea as creating an express lane on the information superhighway, while opponents decried it as an abuse of epic proportions and the end of the free and open internet that we now know.
The issue stalled in Congress. During the past 4 years, Rep. Ed Markey, D-Mass., personally introduced three separate pieces of legislation on the issue, two of which were defeated and the third, the Internet Freedom Preservation Act of 2009, is still in committee. As a result, the FCC is taking matters into its own hands. The FCC is planning to convert its set of "principles" on Net Neutrality into real, enforceable regulations.
New Faces Influence Debate
With Markey's push for Net Neutrality seemingly stalled again, supporters of Net Neutrality are encouraged by the FCC's newfound involvement.
"I think the indications are very good," says Craig Aaron, senior program director of Free Press, the media advocacy group behind Savetheinternet.com. "The new chairman of the FCC made a speech at the Brookings Institute making it very clear his intention to support Net Neutrality."
That new chairman is Julius Genachowski, who was appointed 6 months ago by President Obama. Genachowski now openly supports the creation and enforcement of Net Neutrality rules in the FCC, if Net Neutrality laws could not be passed in Congress. Net Neutrality supporters have also gained more friends in high places, including the president.
"This was his No. 1 tech priority in the campaign," says Eric London, a spokesman for the Open Internet Coalition. "He's repeatedly raised it as president. His leadership on this issue is extremely important. We also appreciate the fact that we have leaders like Chairman [John D. (Jay)] Rockefeller in the Senate and Chairman [Henry A.] Waxman in the commerce committee who are also supportive of the issue. It's an entire team effort, and the president's leadership has been critical."
Genachowski and the other two Obama appointees on the five-person FCC board are expected to vote in favor of Net Neutrality regulations when the issue arises later this spring. This would be the first time ever that there would be concrete rules on the books for Net Neutrality.
Legal Opposition to the FCC
But not everyone with a stake in the Net Neutrality debate is on board with this prospect. Kyle McSlarrow, the president and CEO of the National Cable & Telecommunications Association (NCTA), made a speech before the Media Institute in December in which he said, "Net neutrality rules have the potential to restrict protected speech in myriad ways--and not just the speech of Internet Service Providers."
The NCTA represents cable and telecommunications interests and counts Comcast and Time Warner as two companies that stand to lose a great deal if the Net Neutrality regulation passes.
Proponents and opponents of Net Neutrality have used the First Amendment as a defense, but McSlarrow's take on the issue concerns commercial speech, which is not often cited as a particular concern of the First Amendment.
"The First Amendment's free speech principles apply to businesses as well as ordinary Joes like you and me, although there are some limits," says George Pike, assistant professor of law at the University of Pittsburgh School of Law and author of ITs Legal Issues column [George Pike also discusses the Net Neutrality issue in his column this month on page 15. …