Lex 8256: The Law in Cyberspace Seminar

Network Neutrality (Brad)

First, write down a definition of what you think network neutrality means. Be prepared to bring this definition to class; each person will read their definition, and we will discuss whether or not these definitions changed after the reading. After we have discussed the definitions, I will provide a brief explanation of internet technology and explain why some people claim that the internet was created "neutral."

After you have written your definition, please read Tim Wu, Why You Should Care About Network Neutrality (May 1, 2006).  For additional background, please read Tim Wu, Network Neutrality FAQ.

Read pages 32-43 of the FCC's Universal Service Report (1998).

Do you think that the internet really is that much different from a telecommunications service? Isn't internet access really just a transmission path between whatever content you're looking at online and your computer?

Then read pages 23-35 of the FCC's 2002 Internet Over Cable Order. What do you think? Are you convinced that cable modem service is not a telco service? This distinction is important because it influences what type of authority the FCC has to regulate broadband providers.

After the Internet Over Cable order, the FCC first attempted to enforce network neutrality in In re Madison River Communications. The FCC received complaints from Madison River customers claiming that Madison River was blocking ports commonly used for Vonage and other VOIP services. The FCC started an investigation, and then entered into a consent decree with Madison River. Madison River agreed to pay $15,000 to the US Treasury in order to settle the investigation. It also agreed to refrain from blocking or filtering traffic for the next two years. What do you think? Should Madison River have just paid the fine? What do you think about the two-year expiration period?

In 2005, after Madison River, the FCC promulgated a Policy Statement regarding network neutrality. Please read it.

The FCC later claimed that Comcast's network manafement practices violated this statement of policy. Please read the D.C. Circuit's decision in Comcast v. FCC, 600 F.2d 642 (D.C. Cir 2010).  What do you think? Do you think that the FCC does not have a "statutorily mandated responsibility" to regulate the internet and ISPs?

Then read FCC Chair Julius Genchowski's alternative proposal The Third Way: A Narrowly Tailored Broadband Framework (May 6, 2010).  What do you think? Does the proposal make sense?

Finally, please read the FCC's actual Order regarding Network Neutrality (Dec. 23, 2010), pages 1-85 and 88-96. Although it seems long, almost half of every page is footnotes. What do you think about the FCC's assertion of authority? Does it overcome the DC Circuit's ruling in Comcast?

Has your definition of network neutrality changed at all, or is it the same? Do you think network neutrality is more important now, or do you think that the FCC should stay out of it? A lot of people who are against network neutrality claim that regulation will be bad for the internet, and that the government should stay out of the regulation. What are your thoughts?