Federal Communications Commission

The Federal Communications Commission (FCC) has instituted several rules and policies over the past few years that have been generally in support of the Net Neutrality concept, although these polices have been challenged in the Federal Courts and by Congress. In 2005, the FCC adopted the following principles:
  • To encourage broadband deployment and preserve and promote the open and interconnected nature of the public Internet, consumers are entitled to access the lawful Internet content of their choice.
  • To encourage broadband deployment and preserve and promote the open and interconnected nature of the public Internet, consumers are entitled to run applications and use services of their choice, subject to the needs of law enforcement.
  • To encourage broadband deployment and preserve and promote the open and interconnected nature of the public Internet, consumers are entitled to connect their choice of legal devices that do not harm the network.
  • To encourage broadband deployment and preserve and promote the open and interconnected nature of the public Internet, consumers are entitled to competition among network providers, application and service providers, and content providers.

In 2007, the FCC ruled that Comcast had violated these policies by throttling bandwidth or blocking access to BitTorrent and other Peer-to-Peer (P2P) file sharing applications on its network. The FCC stated determined that such practices by Comcast did not constitute "reasonable network management."

More recently, in December 2010, the FCC passed the Open Internet Order, which placed Net Neutrality restrictions fixed-line broadband Internet providers. Specifically, these rules prevent broadband providers from blocking access to web sites, applications, and services, or from discriminating against different types of lawful Internet traffic. While seen as an aggressive stance in favor of Net Neutrality, the FCC notably takes a looser stance on wireless carriers or mobile Internet providers, based on the technical difficulties associated with the wireless medium. These rules were criticized by proponents and opponents of Net Neutrality alike. Opponents believe that the FCC is overstepping its authority and that ISPs do not need to be placed under these restrictions, but at the same time, many Net Neutrality supporters view these rules as too lenient, especially with regard to wireless, and criticize them as "fake net neutrality" and "rife with loopholes."

A recent curious event involving the FCC was the resignation of Commissioner Meredith Attwell Baker, who announced in May 2011 that she would be accepting a job offer from Comcast effective on June 3, 2011. This announcement came very shortly after Baker voted to approve Comcast's acquisition of a majority stake in NBC Universal, leading many to suspect a potential conflict of interest. In mid-May, The House Committee on Oversight and Government Reform decided to probe this decision.


The U.S. Congress has also seen various bills over the past several years pertaining to Net Neutrality, and the positions of Representatives and Senators seem to be generally split along party lines. Democrats tend to vote in favor of adding Net Neutrality regulations, while Republicans generally oppose them. Since 2006, several pieces of legislation have been introduced in both houses of Congress, mostly in order to prevent broadband providers from discriminating against or modifying Internet traffic but none of these bills have become law.

One of the most recent bills attempting to create Net Neutrality regulations was the Internet Freedom Preservation Act of 2009, sponsored by Rep. Edward Markey (D-MA), who has also sponsored similar bills during the last 5 years. The bill noted the following points pertaining to the Internet and Net Neutrality principles:

  • (2) The Internet is an essential infrastructure that is comparable to roads and electricity in its support for a diverse array of economic, social, and political activity.
  • (4) As the Nation becomes more reliant upon such Internet technologies and services, unfettered access to the Internet to offer, access, and utilize content, services, and applications is vital.
  • (9) The overwhelming majority of residential consumers subscribe to Internet access service from 1 of only 2 wireline providers: the cable operator or the telephone company.
  • (11) A network neutrality policy based upon the principle of nondiscrimination and consistent with the history of the Internet’s development is essential to ensure that Internet services remain open to all consumers, entrepreneurs, innovators, and providers of lawful content, services, and applications.
  • (12) A network neutrality policy is also essential to give certainty to small businesses, leading global companies, investors, and others who rely upon the Internet for commercial reasons.
  • (13) A network neutrality policy can also permit Internet service providers to take action to protect network reliability, prevent unwanted electronic mail, and thwart illegal uses in the same way that telecommunications network operators have historically done consistent with the overarching principle of non-discrimination.
  • (14) Because of the essential role of Internet services to the economic growth of the United States, to meet other national priorities, and to our right to free speech under the First Amendment of the Constitution of the United States, the United States should adopt a clear policy preserving the open nature of Internet communications and networks.

While preventing ISPs from discriminating against different types of Internet traffic and attempting to ensure equitable service, the bill also addresses some of the concerns of opponents of Net Neutrality by permitting ISPs to intervene in order to prevent spam and attacks and to ensure network reliability. The bill never made it to a vote by the House of Representatives.

In April 2011, the House of Representatives led by a Republican majority passed a bill charging that the FCC had exceeded its authority in passing the aforementioned Open Internet Order of December 2010. Most Democrats are against this bill, arguing that overturning the FCC's regulations would have significant consequences. Rep. Henry A. Waxman (D-CA) argues that if the bill were to become law, it "Will end the Internet as we know it and threaten the jobs, investment and prosperity that the Internet has brought to America." The Senate, with a Democratic majority, is not expected to pass the bill and President Obama has already stated that he would veto it.

Federal Courts

When the FCC issued their Order against Comcast in 2007, they claimed jurisdiction over Comcast's network practices under the Communications Act of 1934. However, in Comcast Corp. v. FCC, the Washington D.C. Circuit Court of Appeals ruled that, since the Internet is classified as an information service rather than a communications service, the FCC did not have the authority to regulate Comcast's network management. Specifically, the opinion of the Court noted that the provisions that the FCC cited in the Communications Act did not constitute "statutorily mandated responsibilities."

In January 2011, shortly after the FCC passed its new set of Net Neutrality rules in December 2010, Verizon filed an appeal to the D.C. Court of Appeals. Verizon believed that the FCC had similarly overstepped its authority as in Comcast Corp. v. FCC and did not have the power to regulate broadband Networks.

It is important to note, however, that the decision against the FCC does not reflect the belief that the Internet is better off without Net Neutrality. The D.C. Court of Appeals ruled that the FCC did not have the authority to regulate Comcast in its 2007 order, but, as pointed out by the FCC Statement on this decision, "The Court in no way disagreed with the importance of preserving a free and open Internet; nor did it close the door to other methods of achieving this important end."