Redefining Net Neutrality after Comcast v. FCC
32 Pages Posted: 8 Oct 2011
Date Written: March 27, 2011
Critics sometimes describe James Joyce’s modernist epic Ulysses as the most discussed, least read novel in the world. Net neutrality may be the most discussed, least understood concept in the world of internet policy. Consequently, the term has so many definitions advancing so many different goals that the net neutrality debate seems at times only about what net neutrality is, not why it should (or should not) be. The debate was reopened this past year with the D.C. Circuit’s decision in Comcast Corporation v. Federal Communications Commission, which invalidated the FCC’s jurisdiction over broadband internet service providers (ISPs), including its jurisdiction to enforce a policy statement of net neutrality principles. Although the court focused exclusively on Comcast’s procedural challenge to the FCC’s jurisdiction, the FCC and the policy community subsequently have engaged in a process of redrafting not only the jurisdictional basis but also the net neutrality principles themselves. In late December 2010, the FCC adopted a set of net neutrality rules for the first time through a formal rulemaking process – going beyond the general policy statement of net neutrality principles invalidated in Comcast by requiring transparency and forbidding most blocking and discrimination. This Note analyzes and affirms the importance of mandating full ISP transparency, as the FCC has done in this recent regulation. Given that ISPs will now be required to disclose whether they discriminate among content, services, and applications, this Note also proposes a two-step analysis to determine whether a given practice should be considered reasonable or unreasonable network management.
Suggested Citation: Suggested Citation