Recent Developments in Broadband Regulation

In Chapter 11, Benkler discusses broadband regulation (p. 399), noting that the FCC decided in 2002 to regulate cable and telephone broadband as an "information service" instead of a "telecommunications service" (p. 400). Relying on Chevron deference, a fractured Supreme Court held in the Brand X case that the FCC's decision was permissible. As Benkler explains, the practical effect is that broadband providers may "'edit' their programming, just like any operator of an information service, like a Web site" (p. 401). This would raise serious First Amendment questions about any attempt to require broadband providers to carry the signals of competitors (p. 401). Benkler points out that this debate has been replaced since 2003 with a debate over "network neutrality", and adds that network neutrality "remains as of this writing a viable path for institutional reform that would balance the basic structural shift of Internet infrastructure from a common-carriage to a privately controlled model" (p. 401).

Benkler is correct that as of his writing, network neutrality remains a viable option. But, depending on one's view of legislation currently pending in Congress, it might not remain one for much longer.

Currently being considered in the House of Representatives is the Communications Opportunity, Promotion and Enhancement Act of 2006. Among other things, this bill defines the FCC's authority to enforce broadband policy. Fines for violations of the FCC's current network neutrality principles would be capped at $500,000 (Title II, Sec. 201(b)(2)), and the FCC would be required to conduct adjudication within 90 days of receiving a complaint (Title II, Sec. 201(b)(3)). Arguably most controversial, however, is the following provision (Title II, Section 201(b)(4)):