Should the Government Regulate Net Neutrality?

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Here’s Section 202 (a) of the Communications Act:  “It shall be unlawful for any common carrier to make any unjust or unreasonable discrimination in charges, practices, classifications, regulations, facilities, or services for or in connection with like communication service, directly or indirectly, by any means or device, or to make or give any undue or unreasonable preference or advantage to any particular person, class of persons, or locality, or to subject any particular person, class of persons, or locality to any undue or unreasonable prejudice or disadvantage.”

That was the law which governed our telecommunications system for decades and to some degree kept the telephone industry in line.  The FCC lifted the rule for broadband in 2005 by a regulatory sleight-of-hand that moved broadband services out of the protection of Sec. 202, which created the regulatory purgatory in which we find ourselves today.  The Commission instead proclaimed four policy principles, which they eventually enforced this year.  More about those later.

In 2006, when AT&T took over BellSouth, the Commission imposed a two-year condition bringing the regulation into the Internet age.  It was very simple:  “AT&T/BellSouth also commits that it will maintain a neutral network and neutral routing in its wireline broadband Internet access service. This commitment shall be satisfied by AT&T/BellSouth's agreement not to provide or to sell to Internet content, application, or service providers, including those affiliated with AT&T/BellSouth, any service that privileges, degrades or prioritizes any packet transmitted over AT&T/BellSouth's wireline broadband Internet access service based on its source, ownership or destination.”

That seems fairly simple and straightforward.  It’s not “excessive regulation” of the Internet; it’s a traditional consumer protection measure well-grounded in law and practice.  It is the least the government can do, as the recent Comcast case demonstrated.  Comcast was caught throttling peer-to-peer traffic and lying about it under the guise of “network management.”  Three members of the FCC, including Chairman Kevin Martin, a Republican, didn’t buy it.  At the FCC’s Aug. 1 meeting, and in the subsequent Aug. 20 order, they found that Comcast had violated the open network principles the Commission put forward in September 2005, including the part about consumers were entitled “to run applications and use services of their choice,” and access the content of their choice.  Despite the protestations of Comcast, the Commission found that, Comcast’s practices contravened Federal policy.

Comcast didn’t get punished for its transgressions, but at least the government set down some markers that behavior of interfering with consumers won’t be tolerated.  Or at least won’t be tolerated very much.  Comcast has to file a network management plan.  That is not regulating the Internet.  It is regulating the companies which provide access to the Internet – a traditional function that the FCC has largely abandoned to the detriment of the country.  Ever since the FCC backed off from watching out for the consumer, our Internet penetration standing in the world as plummeted as American consumers pay more for less than in most comparable countries as consumer choice for broadband providers has dwindled to two, at most.