Even as the U.S. Court of Appeals for the District of Columbia has yet to weigh in on the Verizon case against the Federal Communications Commission’s (FCCs) net neutrality 2010 Report and Order on Preserving the Open Internet (FCC 10-210), proponents are beginning to formulate the next round of debate on the issue. On April 26, 2012, Susan Crawford, a former advisor to the Obama transition team, wrote a commentary for Wired on what she termed the “cable-ization” of the Internet. In her article, Ms. Crawford likened the cable industry to an airline employee who refused to let her take her viola on an airplane, stating that, like this airline employee, the cable industry acts as a “gate keeping” monopoly that refuses to provide users with access to the full extent of broadband Internet capabilities under all circumstances.

Crawford’s commentary was followed by an article in The New York Times on May 8, 2012 by Eduardo Porter, hypothesizing the case against free-market Internet Service Providers (ISPs) for the supposed lack of sufficient access, comparing broadband Internet access to a single car brand eating up one lane of a crowded highway. He further declared the need for open access to the Internet, and insinuated that players like Comcast, AT&T, and other providers are hindering the ability of users to fully embrace technology.

Responding to The New York Times article, Eli Dourado of the Mercatus Center described the economics that should govern any discussion on net neutrality, including accounting for the fixed costs associated with maintaining a network that are eventually passed on to the consumer. In response to Crawford and Porter, Scott Cleland, the president of research consulting firm Precursor, wrote that “Central to the Internet's value is that it is efficiency enhancing, but only if tera-bandwidth-whales like Netflix, do not use it hyper-inefficiently. Responsible Internet companies distribute their content responsibly.”

Problems with data usage are not new, and have been touted as an argument to support net neutrality rules in the past. As part of the FCC’s case in support of net neutrality rules, proponents have pointed to a past attempt by Comcast to combat network congestion by managing peer-to-peer traffic. When officials at Comcast began to notice that network demand by heavy users was impeding the ability of other subscribers to use its broadband service, the company’s engineers devised a way to intermittently hold traffic from peer-to-peer applications, so that performance did not suffer for the vast majority of subscribers. In April 2010, the D.C. Circuit Court vacated the FCC’s attempt to sanction Comcast, and ultimately, Comcast worked with the peer-to-peer community to resolve the issue by developing alternative solutions that advanced traffic management techniques to everyone’s satisfaction. This free-market industry innovation to solve real world problems is how conflicts on the Internet should be resolved.

Industry leaders continue to seek new ways to manage, expand and improve services to their customers, despite efforts by net neutrality proponents to push for increased government intrusion over the Internet. Private industry has been working with the federal government to provide low-cost broadband services to those who could not otherwise afford them through the Connect2Compete program. This collaboration between the FCC and private sector companies, including Comcast, Microsoft and several others, provides low cost equipment and Internet access to those who qualify for the federal school lunch program and meet other requirements. The FCC plans to continue to reach out to Americans to promote the Connect2Compete digital literacy program.

During the debate over net neutrality, the FCC proposed to classify ISPs as common carrier service providers covered under Title II of the Communications Act of 1934. This proposal would have permitted the FCC to enforce net neutrality rules over ISPs after the D.C. Circuit Court vacated FCC’s attempt to sanction Comcast in April 2010. The proposal was debated during Senate hearings on June 24, 2010, and ultimately when the Report and Order on Preserving the Open Internet were approved by the FCC on December 10, 2010, Title II reclassification of broadband was not included. The FCC final order clearly states (footnote 136) that “The open Internet rules that we adopt in this Order do not regulate Internet applications, much less impose Title II (i.e., common carrier) regulation on such applications.”

However, this is not the end of the debate to reclassify broadband as subject to Title II provisions of the Communications Act. On June 17, 2010, the FCC sent out a Notice of Inquiry on its Framework for Broadband Internet Service (FCC 10-114, GN Docket 10-127). In this inquiry, the FCC sought to clarify its position and regulatory authority over broadband services not as an information service, but as a telecommunications or common carrier service as defined under Title II. While the reply comment date has passed, this docket remains open.

As reported in Multichannel News, in response to questions before a Senate Commerce, Science and Transportation Committee hearing on May 16, 2012, FCC Chairman Julius Genachowski stated that he would not rule out classifying ISPs as a Title II common carrier service if the court overturns the Open Internet Order. The Crawford and Porter articles lay the groundwork for proponents of net neutrality to continue to push for Title II designation of ISPs should the court rule in favor of Verizon. Initial briefs for the Verizon v. FCC (Verizon v. FCC, No. 11-1355, D.C. Circuit Court) case are due by July 2, 2012 and final briefs are due by November 21, 2012. A final decision on the case is expected sometime in 2013.

Continued innovation on the Internet remains under attack by the FCC and net neutrality supporters. By announcing his intention to consider classifying broadband or ISP providers as common carriers under Title II of the Communications Act of 1934, the FCC chairman has once again shown his disregard for congressional authority over these matters. Taxpayers and consumers need to keep a close eye on the court case and the FCC’s response.