In past few years the term “Network Neutrality” or “Net Neutrality” appeared in many cases when considering the use of internet.
It is a choice of internet users to browse any internet content without any restrictions. Net Neutrality helps those users to freely surf on the internet with helping to prevent Internet Service Providers (ISP) or in some cases even governments to block any content or sites. There are many reasons why the Internet Service Providers (ISP) does that. Two of the primary reasons are money and self interest. LetA´s say for example that we want to search something on Google Search Engine and the connection is extremely slow and even impossible (error on the page). At a same time our Internet Service Provider (ISP) has its own search engine or has an agreement with other independent search engine web site. The reason why we have connection errors or extremely slow internet is because our Internet Service Provider (ISP) does not respect Net Neutrality and intentionally slow down the internet or even in some cases block the content. To avoid that there are many debate how to do that. On every continent the laws are different and Net Neutrality applies in many varieties. Recently, in United States of America there are many law cases that deal with Net Neutrality and who is actually responsible to control the Net Neutrality. Some politicians in United States of America have built their personal career in certain manner based on rights and laws of Net Neutrality. Most important person who is supporting Net Neutrality is current President of United States of America, Barack Obama. In his election time he explained the problem: “What you’ve been seeing is some lobbying that says that the servers and the various portals through which you’re getting information over the Internet should be able to be gatekeepers and to charge different rates to different Web sites…so you could get much better quality from the Fox News site and you’d be getting rotten service from the mom and pop sites,” he went on. “And that I think destroys one of the best things about the Internet which is that there is this incredible equality there.” (NEWS, 2011) Basically what President Barack Obama tried to say is that all the web sites should be equally rated and equally provided to all internet users and not charged differently. Otherwise, there would be a discrimination and unfairness. The good example is described above with Google Search Engine.
With a confidence, I would say that each country has different policy regarding the Net Neutrality. In: USA: Federal Communications Commission (FCC) Canada: Canadian Radio-television and Telecommunications Commission (CRTC). Since the topic Net Neutrality is very broad we will focus mainly on Net Neutrality issues in United States of America and just scratch the surface of Net Neutrality issues in other countries.
The first appearance of Net Neutrality could be connected to the Pacific Telegraph Act of 1860 signed by United States of America President James Buchanan where stated: “That messages received from any individual, company, or corporation, or from any telegraph lines connecting with this line at either of its termini, shall be impartially transmitted in the order of their reception, excepting that the dispatches of the government shall have priority.” (Museum, 2011) What started in 1860 is actually the neutrality effect that we can compare with the philosophy of Net Neutrality today and exactly what President Barack Obama was promoting during his campaign. Another appearance of Net Neutrality issue happened in 1956 in law case between HUSH-A-PHONE Corporation, vs. United States of America and Federal Communications Commission (FCC). In this case the problem occurred with understanding of Telecommunication Act from 1934. The part of the case important regarding the Net Neutrality was: subscriber’s right reasonably to use his telephone in ways which are privately beneficial without being publicly detrimental”. (HUSH-A-PHONE CORPORATION vs. USA;FCC, 2011) That means that it was a right of a people for privacy and right to use the new component that was giving the option to users for private conversations. The debate was on a safety, but the real reason was actually the outflow of information that was given out in the public and now with a new technology that was not a case anymore. In recent history the appearance of Net Neutrality occurred in 2003 when University of Virginia Law School professor Timothy Wu published his “Network Neutrality, Broadband Discrimination ¾paper in which he pointed out the concern about Net Neutrality. In his paper, Professor Timothy Wu wrote: “The promotion of Network Neutrality is no different than the challenge of promoting fair evolutionary competition in any privately owned environment, whether a telephone network, operating system, or even a retail store. Government regulation in such contexts invariably tries to help ensure that the short term interests of the owner do not prevent the best products or applications becoming available to end-users. The same interest animates the promotion of network neutrality: preserving a Darwinian competition among every conceivable use of the Internet so that the only the best survive. (Wu, NETWORK NEUTRALITY, BROADBAND, 2011) Basically what Professor Timothy Wu addressed as potential problem was to define a broadband regime to reach the final goal and that is Net Neutrality. One of the proposed Net Neutrality laws that Professor Timothy Wu wrote in his paper was to ensure the quality of internet connections without any throttling or delays or any other practical deviation. Moreover, this particular problem I will discuss later in law case Federal Communications Commission (FCC) vs. Comcast in United States of America where the outcome after appeal was different than above mentioned. In year 2003, Professor Timothy Wu and Professor Lawrence Lessing wrote the letter to Federal Communications Commission (FCC) stating the same issues and proposing the same Net Neutrality lawA´s and putting a pressure on above mentioned institution to prioritize the issues and deal with the problem such as Net Neutrality. They focused mainly on the broadband users and the rights that they have. The accusations are coming from both sides. “Application developers accuse the cable industry of “discrimination” and “blocking content,” and say it must be stopped. The cable industry accuses developers of manipulating governmental regulation to gain a competitive advantage.” (Wu & Lessig, Ex Parte Submission in CS Docket No. 02-52, 2011) Does Federal Communications Commission (FCC) have legal rights on Net Neutrality control over Internet Service Providers (ISPs’)? What are the laws that show the rightness to do such thing? In countries that I will mention in this paper there are government agencies but the laws are not complete and there need to be a lot of revising and completing the formal regulations.
The concept of Net Neutrality is mostly spread in United States of America and that is why I will focus mainly of this country. At the moment the Net Neutrality is present just as a basic and broad term which leaves open to any telecommunication company to set the basic rate for each internet user on usage of any internet content or service. When I mentioned basic and broad term, I meant that there are no clear restrictions against charging more or less for different usage of broadband internet consumption. A lot of Internet Service Providers (ISPA´s) tend to manipulate the usage of services in a way to block certain internet ports or slow down intentionally the internet speed. That disables the consumer to surf the internet or certain web sites or make it impossible to download certain internet material. Recently, the things are starting to change due to a high pressure of internet consumers and internet service providers (ISPA´s).
Federal Communication Commission (FCC is an independent agency of the United States government that has legal rights to control the issues with Net Neutrality. It regulates non- government use of the radio spectrum (radio and TV), all interstate telecommunication (wire, satellite, and cable), and all international communications that originate or operate in the United States of America with jurisdiction in 50 different states. There are two laws that control the actions of Federal Communication Commission (FCC) and those are: Telecommunication Act of 1934 and improved Telecommunication Act of 1996. As already mentioned, the jurisdiction covers the 50 states, District of Columbia, U.S. possessions. (Commission, Telecommunication Act of 1934, 2011) (Commission, Telecommunication Act of 1996, 2011) In 1996, at the 104th Congress of United States of America, the Senate and House of Representatives of United States of America imposed and empowered a new Telecommunications Act to improve and challenge the competition in a way to reduce prices and increase the quality of service to all customers in United States of America. Furthermore, they wanted to support the deployment of new technology. The parts of the Telecommunications Act that deal with Net Neutrality are mainly the section 706 and Section 230. In general the Section 706 (Advance Telecommunications Incentives) state: “The Commission and each State commission with regulatory jurisdiction over telecommunications services shall encourage the deployment on a reasonable and timely basis of advanced telecommunications capability to all Americans (including, in particular, elementary and secondary schools and classrooms) by utilizing, in a manner consistent with the public interest, convenience, and necessity, price cap regulation, regulatory forbearance, measures that promote competition in the local telecommunications market, or other regulating methods that remove barriers to infrastructure investment.” (Commission, Telecommunication Act of 1996, 2011) Furthermore, inquire was: “The Commission shall, within 30 months after the date of enactment of this Act, and regularly thereafter, initiate a notice of inquiry concerning the availability of advanced telecommunications capability to all Americans (including, in particular, elementary and secondary schools and classrooms) and shall complete the inquiry within 180 days after its initiation. In the inquiry, the Commission shall determine whether advanced telecommunications capability is being deployed to all Americans in a reasonable and timely fashion. If the Commission’s determination is negative, it shall take immediate action to accelerate deployment of such capability by removing barriers to infrastructure investment and by promoting competition in the telecommunications market. “(Commission, Telecommunication Act of 1996, 2011) The one part of the Section 230 (Protection for Private Blocking and Screening of Offensive Material) state the following: “The Congress finds the following: (1) The rapidly developing array of Internet and other interactive computer services available to individual Americans represent an extraordinary advance in the availability of educational and informational resources to our citizens. (2) These services offer users a great degree of control over the information that they receive, as well as the potential for even greater control in the future as technology develops. (3) The Internet and other interactive computer services offer a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity. (4) The Internet and other interactive computer services have flourished, to the benefit of all Americans, with a minimum of government regulation. (5) Increasingly Americans are relying on interactive media for a variety of political, educational, cultural, and entertainment services.” (Commission, Telecommunication Act of 1996, 2011) “It is a policy of United States of America to: (1) Promote the continued development of the Internet and other interactive computer services and other interactive media; (2) Preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation; (3) Encourage the development of technologies which maximize user control over what information is received by individuals, families, and schools who use the Internet and other interactive computer services; (4) Remove disincentives for the development and utilization of blocking and filtering technologies that empower parents to restrict their children’s access to objectionable or inappropriate online material; and (5) Ensure vigorous enforcement of Federal criminal laws to deter and punish trafficking in obscenity, stalking, and harassment by means of computer.” (Commission, Telecommunication Act of 1996, 2011)
To best explain the situation with Net Neutrality in United States of America, it is necessary to discuss about the law case between Comcast Corporation as plaintiff and Federal Communication Commission (FCC) as defendant. Comcast Corporation was at the time largest US cable operator and Internet Service Provider. Everything started in 2008 when Federal Communication Commission (FCC) forced Comcast Corporation to stop blocking peer to peer traffic among customers. To be precise what Comcast Corporation was doing is slowing down intentionally the broadband connection when customers were using Bit Torrent to download or upload any internet material. After that decision the Comcast Corporation decided to appeal at the US Court of Appeals for the District of Columbia Circuit claiming that Federal Communication Commission (FCC) has no rights to forced them to do so. Comcast Corporation claimed that Federal Communication Commission (FCC) could not prove in right justice the jurisdiction over this violation and that the final order in 2008 was not enough reasoned. Therefore, they stated that there are two laws violated in a way of misinterpretation and abuse of not given authority: Section 706 and Section 230b of 1996 Telecommunication Act. The official statement was following: “Implying that this court has done what the Commission has not, the Commission points to a recent decision in which we wrote, “The general and generous phrasing of 706 means that the FCC possesses significant, albeit not unfettered, authority and discretion to settle on the best regulatory or deregulatory approach to broadband.” Ad Hoc Telecomms. Users Comm. v. FCC, 572 F.3d 903, 906-07 (D.C. Cir. 2009). In that case, however, we cited section 706 merely to support the Commission’s choice between regulatory approaches clearly within its statutory authority under other sections of the Act, and upheld the Commission’s refusal to forbear from certain regulation of business broadband lines as neither arbitrary nor capricious. Nowhere did we question the Commission’s determination that section 706 does not delegate any regulatory authority. The Commission’s reliance on section 706 thus fails. As in the case of section 230(b) and section 1, the Commission is seeking to use its ancillary authority to pursue a stand-alone policy objective, rather than to support its exercise of a specifically delegated power”. (United States Court of Appeals, 2011) Since I already explained two sections of the law, I would like to address the holdings of the court because this was the first case that was at the same time a turning point for Net Neutrality. Before the Comcast case, the Federal Communication Commission (FCC) has won all the other cases (Verizon, Google, and Turner). It showed that the laws and regulations regarding Net Neutrality in United States of America are not structured well enough and that something needs to be changed. The congress need to make clear the details about the obligations of Federal Communication Commission (FCC) as institution that is responsible for Net Neutrality. At the end, the US Court of Appeals for the District of Columbia Circuit ruled that: “Because the Commission has failed to tie its assertion of ancillary authority over Comcast’s Internet service to any “statutorily mandated responsibility,” Am. Library, 406 F.3d at 692, we grant the petition for review and vacate the Order.” (United States Court of Appeals, 2011) At that point in time, the Federal Communication Commission (FCC) had no authority to regulate the internet for the purpose of Net Neutrality. The authority was taken based on different interpretations of the laws from Telecommunication Act. It is expected now from United States of America Congress to impose a new law and reclassify the rules that will allow Federal Communication Commission (FCC) to control the internet in any way.
The Canadian Radio-television and Telecommunications Commission (CRTC) had in 2009, as a regulatory system in Canada, allowed to Internet Service Providers (ISP’s) possibility to manage internet traffic but only under certain explicit circumstances. Before explaining the four circumstances by which Canadian Radio-television and Telecommunications Commission (CRTC) had in 2009, as a regulatory system in Canada, allowed to Internet Service Providers (ISP’s) possibility to manage internet traffic, it is important to mention that: “As required under section 47 of the Act, the Commission must exercise its powers and perform its duties in accordance with any policy direction from the Governor in Council.” (Canadian Radio-television and Telecommunications Commission, 2011) The Canadian Radio-television and Telecommunications Commission (CRTC) control the managing the traffic based on the following four considerations:
“ISPs must be transparent about their use. Consumers need this information to make informed decisions about the Internet services they purchase and use.” Basically, in case Internet Service Providers (ISP’s) decide to slow down certain internet content or to block certain web site, the customers need to know that before they sign a contract.
“The Commission recognizes that some measures are required to manage Internet traffic on ISP networks at certain points in the network at certain times.” The innovations are favourable to improve the quality and quantity of internet service networking.
“ISPs must ensure that any Internet traffic management practices (ITMPs) they employ are not unjustly discriminatory nor unduly preferential. The Commission has established an ITMP framework that provides clarity and a structured approach to evaluating whether existing and future Internet traffic management practices (ITMPs) are in compliance with subsection 27(2) of the Telecommunications Act (the Act).” That means slowing the traffic can’t be done without prior approval of Canadian Radio-television and Telecommunications Commission (CRTC) approval.
“ISPs may continue to employ Internet traffic management practices (ITMPs) without prior Commission approval. The Commission will review such practices, assessing them against the framework, based upon concerns arising primarily through complaints by consumers.” (Canadian Radio-television and Telecommunications Commission, 2011)
Net Neutrality is a “hot potato” that due to increase of usage of internet appeared to be a subject that calls for quick improvements. The debate is still who has the right and what institution is actually in charge of controlling the issues of Net Neutrality. In some countries, this regulation is well imposed, but for example in United States of America it is on United States Congress to clarify exactly the duties and obligations of Federal Communication Commission (FCC) so that everyone is safe and know its business.
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