The fact that the net in net neutrality actually refers to the term network and is not a reference to the Internet is lost. The difference between network and the Internet is profound, and the results of the confusion of the legal definitions and functions of each are then therefore profound as well.
The statement by FCC (News - Alert) Chairman Thomas Wheeler alludes to this difference. It also alludes to where the power and control to create rules and enforce them sits and where it is a bit hazy.
The FCC website says that FCC Chairman Thomas Wheeler issued the following statement regarding an opinion issued by the U.S. Court of Appeals for the District of Columbia on a challenge of the commission’s Open Internet rules: “The D.C. Circuit has correctly held that ‘Section 706 . . . vests [the Commission] with affirmative authority to enact measures encouraging the deployment of broadband infrastructure’ and therefore may ‘promulgate rules governing broadband providers’ treatment of Internet traffic.’ I am committed to maintaining our networks as engines for economic growth, test beds for innovative services and products, and channels for all forms of speech protected by the First Amendment. We will consider all available options, including those for appeal, to ensure that these networks on which the Internet depends continue to provide a free and open platform for innovation and expression, and operate in the interest of all Americans.”
There are two key factors with this that are actually one – creation and enforcement of rules and the network, be that access to the Internet, or the Internet itself. Both are about control.
First off, the FCC very magnanimously states that the court was correct. The FCC has not just authority, but affirmative authority, so it is very clear that they have power. The power that they have enables the commission to “enact measures” that “encourage”. That sounds like having the power to instill aspiration. As a result of this power the FCC therefore is allowed to promote, or make widely known, the rules that govern broadband providers’ (network) treatment of Internet traffic, but it doesn’t seem that the FCC has the power to create those rules, and there is no mention of the ability to enforce rules. They can just promote the rules that already exist, or are created by another entity, or person, if they so chose to do so.
So, the FCC can enact measures that encourage the deployment of network infrastructure that the Internet requires and depends on to exist, but it cannot create that infrastructure itself and, or create the rules governing how the Internet traffic is treated. It sounds like those that build their own broadband (a.k.a. fiber) networks can create their own rules and enforcement is just executing on the business plan. That sounds very similar to the FirstNet model.
Interestingly, the D.C. circuit court judge, Judge David Tatel, was not saying that control of the network by the owners/providers with no oversight was what he was in favor of. He actually said: “The commission has adequately supported and explained its conclusion that absent rules such as those set forth in the Open Internet Order, broadband providers represent a threat to internet openness and could act in ways that would ultimately inhibit the speed and extent of future broadband deployment."
Judge Tatel was really, specifically ruling that the FCC does not have the power over providers that sell access to the Internet to require them to treat all Internet protocol traffic that is going to, or from the Internet equally. So, that then leaves us all with the question, if the FCC cannot create, or enforce Open Internet rules, who can? This situation brings to mind The Golden Rule. The one who has the gold makes the rules. In this situation fiber is the gold.
The U.S. national broadband and Internet policy is like a riddle wrapped in a knock-knock joke. Net – Net, who’s there? No one. No one who? No one, who knows who.
Edited by Stefania Viscusi