Category Archives: Federal Communications Commission

Free Press, a non-profit media reform advocacy group, has filed a lawsuit in Federal Court over what they consider an arbitrary distinction between wired and wireless internet access contained in the Federal Communications Commissions new Open Internet regulations (also known as “Net Neutrality).  This may seem like an arbitrary distinctions, but its purpose is primarily to open the door to challenge several other aspects, namely whether or not the FCC itself has the authority, under the 1934 Communications Act, to regulate how Internet Service Providers manage their assets and transactions.

The “Open Internet” Regulations, which go into affect on November 20, is outlined in the 155 page document “Preserving the Open Internet“.  Here is its synopsis:

I. PRESERVING THE FREE AND OPEN INTERNET
In this Order the Commission takes an important step to preserve the Internet as an open
platform for innovation, investment, job creation, economic growth, competition, and free
expression. To provide greater clarity and certainty regarding the continued freedom and
openness of the Internet, we adopt three basic rules that are grounded in broadly accepted
Internet norms, as well as our own prior decisions:

i. Transparency. Fixed and mobile broadband providers must disclose the network
management practices, performance characteristics, and terms and conditions of their
broadband services;
ii. No blocking. Fixed broadband providers may not block lawful content, applications,
services, or non-harmful devices; mobile broadband providers may not block lawful
websites, or block applications that compete with their voice or video telephony
services; and
iii. No unreasonable discrimination. Fixed broadband providers may not unreasonably
discriminate in transmitting lawful network traffic.
We believe these rules, applied with the complementary principle of reasonable network
management, will empower and protect consumers and innovators while helping ensure that the
Internet continues to flourish, with robust private investment and rapid innovation at both the
core and the edge of the network. This is consistent with the National Broadband Plan goal of
broadband access that is ubiquitous and fast, promoting the global competitiveness of the United
States.

Sounds good right?  These are a set of principled goals created with the intention of allowing everyone equal access to the internet if they sign up for a service. Opponents of “Open Internet”argue that the government does should not regulate what corporations, businesses, and individuals etc., do lawfully on the internet.  They argue that this is a first step encroachment by Big Government into the free market aspect of both internet access and internet activity.  Legally their argument questions whether or not the FCC is authorized under the Act to regulate how Businesses providing Internet access, conduct their business activities.    Why?  Because Congress never amended the Act to give the FCC the authority to regulate business practices.

In an attempt to avoid political fallout over the volatile issue of Net Neutrality, Congress punted the question to the FCC and had them try to figure it out for themselves.  In 2010, Comcast successfully used that argument in Federal Court when the FCC issued a cease and desist order attempting to force Comcast to limit bandwidth to users downloading possibly copyrighted video using BitTorrent.  It could be argued that the law in this case is a double edged sword; if the FCC cannot force a privately owned internet service provider to limit bandwidth, it then cannot force a privately owned internet service provider to “not” limit ban bandwidth.

The Issues addressed in the lawsuit are contained on Page 32 of the document, where it draws a distinction between broadband or “wired” internet access and mobile, or “wireless” internet access.  Free Presses Petition for review can be viewed here.