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Mon September 9, 2013
All Tech Considered

Net Neutrality In Court: Here's What You Need To Know

Originally published on Mon September 9, 2013 2:27 pm

The beauty of the Internet — and the reason for its ubiquitous place in our lives — is that just about anyone can use it to offer services, products or information. But the link between what's out there on the Internet, how fast it gets to us and how much data can get to us is dependent on Internet service providers and the rules that govern them. That's where things get thorny for the principle of net neutrality.

If your eyes are already glazing over, consider this: This debate could affect the speed, quality and cost of your Hulu or Netflix binge-viewing.

Net neutrality is back in the news Monday because a landmark case is getting its day in a D.C. federal court. The case challenges whether the federal government can enforce net neutrality rules. Here's a primer to get you up to speed:

What Is Net Neutrality?

Net neutrality refers to the notion that's governed the Internet since the beginning — all Internet users deserve equal access to online information, no matter whether you use Verizon or Comcast. Internet service providers should be "neutral" to the content their customers consume.

The Way Things Are Now

As things are now, the Federal Communications Commission regulates net neutrality by "policing" an open Internet. The current rules, passed in 2010, prevent broadband Internet service providers from blocking lawful content and other Internet services. Time magazine sums up the three rules:

"First, the order requires ISPs to be transparent about how they handle network congestion; second, the ISPs are prohibited from blocking traffic such as Skype or Netflix on wired networks; third, the order outlaws 'unreasonable' discrimination, meaning the ISPs can't put such services into an Internet 'slow lane' in order to benefit their own competing services."

The regulations don't fully cover wireless carriers, something that Internet rights groups aren't pleased with. The FCC says the exemption recognizes that the wireless Internet gets overused because of new customers constantly signing up and that carriers, therefore, need flexibility to put limits on use.

The Politics

President Obama supported net neutrality in his 2008 campaign, and then after he was sworn in, he appointed Julius Genachowski, a net neutrality supporter, as chairman of the FCC.

In December 2010, when the FCC approved a plan to implement the net neutrality regulations, the vote was 3-2, along party lines. Congressional Republicans argue that net neutrality is unnecessary government involvement that stifles innovation; the GOP-controlled House has even voted to strip the FCC of funding for net neutrality enforcement.

The Recent History

For nearly a decade, companies have challenged the net neutrality principle, a move they say better serves their customers.

In 2007, customers accused Comcast of "throttling," or purposely slowing down downloads. Comcast and other companies argued that they needed to discriminate between the bits of information being shared to conserve bandwidth given the growing number of customers on the Web. The FCC cited Comcast, Comcast appealed, and the same court hearing Monday's case decided the FCC didn't prove it had the authority to regulate broadband Internet.

Here's a full timeline from GigaOm.

The Case Before Judges

It's an understatement to say communications companies aren't pleased with existing FCC regulations. Verizon filed suit in federal court to overturn the rules, arguing the FCC overstepped its regulatory authority and that the rules are unnecessary. Verizon points out that the FCC has documented only four examples in the past six years of ISPs' possibly blocking content.

Verizon also said that net neutrality rules violate the First Amendment, since broadband companies transmit the speech of others. That gives the providers "editorial discretion," according to Verizon.

The FCC argues that it has the authority to enforce net neutrality under provisions of the Telecommunications Act of 1996 and the Communications Act of 1934.

Internet rights groups believe the open Internet is what lets companies like Twitter, Facebook and Skype flourish. Supporters say net neutrality prevented existing market players from slowing down or blocking the connections of Skype calls, for instance, to protect their businesses. As The New York Times lays out:

"The F.C.C. ... believes that Internet service providers must keep their pipelines free and open, giving the creators of any type of legal content — movies, shopping sites, medical services, or even pornography — an equal ability to reach consumers. If certain players are able to buy greater access to Internet users, regulators believe, the playing field will tilt in the direction of the richest companies, possibly preventing the next Google or Facebook from getting off the ground."

The three judges on the U.S. Court of Appeals for the District of Columbia Circuit are hearing the case now.

The Implications

Advocates of net neutrality fear that if the federal government stops enforcing rules to keep the pipelines free and open, then certain companies will be able to get greater access to Internet users. That, they say, creates a system of haves and have nots — the richest companies could get access to a wider swath of Internet users, for example, and that could prevent the next Google from getting off the ground. GigaOm explains:

"If the courts decide the FCC doesn't have the legal authority to enforce the network neutrality rules, it not only could gut the rules, but it also gives ISPs a free pass to start making decisions about the information aspects of their service — and in today's non-competitive broadband environment — that could mean throttling Netflix or charging Google more money to deliver a clean YouTube stream. It also neuters the agency moving forward when all content will flow as information over broadband pipes — from TV to your doctor visits."

Judges aren't expected to issue a ruling for months. But now you're up to speed.

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