Derailed by the D.C. Circuit: Getting Network Management Regulation Back on Track

As the Internet continues to play a more central role in the daily lives of Americans, concerns about how Internet service providers manage their networks have arisen. Responding to these concerns and recognizing the importance of maintaining the open and competitive nature of the Internet, the FCC has taken incremental steps to regulate network management practices. Perhaps the most significant of these steps was its August 2008 Memorandum Decision and Order in which the FCC condemned Comcast Corporation\u27s network management practices as discriminatory and arbitrary. In that Order, the FCC required that Comcast (1) adopt new practices that complied with federal Internet policy and (2) disclose the specifics to its customers and the FCC. Comcast responded by adopting a new practice and, in the alternative, filing an appeal with the United States Court of Appeals for the D.C. Circuit challenging the FCC\u27s authority to regulate network management practices. On April 6, 2010, the D.C. Circuit issued its much-anticipated decision. In a narrow opinion, it vacated the Order, holding that the FCC had neither express nor ancillary authority to regulate network management practices. In the wake of the D.C. Circuit\u27s decision is uncertainty about the path forward. The FCC has, however, reaffirmed its commitment to promote federal Internet policy. The first step to getting Internet regulation back on track is to reestablish jurisdiction. As this Note discusses, there are a number of ways in which the FCC can accomplish this. However, jurisdiction is merely the first step. After taking a closer look at whether Comcast\u27s post-2008 Order network management practices actually complied with the FCC\u27s Order, this Note recommends that the next step is to adopt clear rules for network management, backed by monitoring procedures and real consequences designed to ensure long-term compliance

Derailed by the D.C. Circuit: Getting Network Management Regulation Back on Track

As the Internet continues to play a more central role in the daily lives of Americans, concerns about how Internet service providers manage their networks have arisen. Responding to these concerns and recognizing the importance of maintaining the open and competitive nature of the Internet, the FCC has taken incremental steps to regulate network management practices. Perhaps the most significant of these steps was its August 2008 Memorandum Decision and Order in which the FCC condemned Comcast Corporation\u27s network management practices as discriminatory and arbitrary. In that Order, the FCC required that Comcast (1) adopt new practices that complied with federal Internet policy and (2) disclose the specifics to its customers and the FCC. Comcast responded by adopting a new practice and, in the alternative, filing an appeal with the United States Court of Appeals for the D.C. Circuit challenging the FCC\u27s authority to regulate network management practices. On April 6, 2010, the D.C. Circuit issued its much-anticipated decision. In a narrow opinion, it vacated the Order, holding that the FCC had neither express nor ancillary authority to regulate network management practices. In the wake of the D.C. Circuit\u27s decision is uncertainty about the path forward. The FCC has, however, reaffirmed its commitment to promote federal Internet policy. The first step to getting Internet regulation back on track is to reestablish jurisdiction. As this Note discusses, there are a number of ways in which the FCC can accomplish this. However, jurisdiction is merely the first step. After taking a closer look at whether Comcast\u27s post-2008 Order network management practices actually complied with the FCC\u27s Order, this Note recommends that the next step is to adopt clear rules for network management, backed by monitoring procedures and real consequences designed to ensure long-term compliance

Creating Effective Broadband Network Regulation

The Internet is central to the business and pastimes of Americans. Calls for increased regulation are ongoing, inevitable, and often justified. But calls for network neutrality or nondiscrimination assume with little hesitation federal agency competence to give predictable and accurate meaning to these terms and create regulations to implement them. This Article\u27s chief contribution to Internet policy debate is to focus attention on the likelihood of successful FCC Internet regulation-a key assumption of some advocates. The Article analyzes three characteristics that hobble the FCC, which is the likeliest federal agency to provide prescriptive rules. First, the record for the agency on a host of industry decisions where technology plays a pivotal role tilts decidedly against counting on successful regulation. Second, the technology here is unlike anything the FCC has successfully regulated before. Judging networks, which are constructed and operated for maximum private gain and not based on a government-approved rate of return model, isn\u27t among them. Finally, the agency itself has yet to demonstrate that it is the best locus of power for deciding the fate of the Internet. The political economy of the FCC makes it less successful as an expert agency. This Article focuses on two somewhat interrelated solutions: reliance on the shame/Wiki/blog culture of the Internet and disclosure of management practices by network providers, enforceable under contract. These approaches are congenial with the most basic Internet values of information transparency and sharing

Virtual Takings: The Coming Fifth Amendment Challenge to Net Neutrality Regulation

“Net neutrality” refers to the principle that broadband providers should not limit the content and applications available over the Internet. Long a rallying cry of techies and academics, it has become one of the central pillars of the Obama Administration’s telecommunications policy. The Federal Communications Commission’s efforts to regulate the “onramp to the Internet” have attracted significant attention from the telecommunications industry and the academic community, which have debated whether the proposed restrictions violate broadband providers’ First Amendment rights. But there is an additional constitutional implication of net neutrality that has not yet been sufficiently addressed in the scholarly literature: the Takings Clause. This article argues that under the Supreme Court’s Takings Clause jurisprudence, the Commission’s proposed net neutrality rules effect a permanent physical occupation of private broadband networks and therefore take broadband providers’ property without just compensation. In essence, net neutrality would grant Internet content providers a permanent virtual easement across privately-owned broadband networks to deliver content to end-users. It thus would deprive broadband providers of the right to exclude others from their networks—a right that the Court’s takings jurisprudence has repeatedly dubbed “one of the most essential sticks in the bundle of rights that are commonly characterized as property.” At the very least, the Takings Clause issue raises a serious constitutional question regarding the Commission’s authority to adopt net neutrality regulations without clear authority from Congress to do so. The Commission should therefore seek explicit Congressional approval before promulgating net neutrality rules, rather than continuing to freelance at the periphery of its regulatory authority