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)):

. . . the Commission's authority to enforce the broadband policy statement and the principles incorporated therein does not include authorization for the Commission to adopt or implement rules or regulations regarding enforcement of the broadband policy statement and the principles incorporated therein [with one exception for adjudication of complaints].

Opponents of the bill contend that the "Broadband Policy Statement" does not do enough to protect the principle of Net neutrality, and the provision banning the creation of new rules will effectively hamstring the FCC's efforts to enforce Net neutrality in the future. As a result, a grassroots effort involving a variety of individuals and groups from coalition across the political spectrum has sprung up to lobby against the current bill and in favor of provisions that would protect Net neutrality. Before this effort began, the House Energy and Commerce subcommittee rejected, by an 8-23 margin, a Democratic-backed amendment sponsored by Rep. Ed Markey (D-MA), that sought to amend the bill to offer more protection for Net neutrality. The bill went on to the full committee without the amendment with a 27-4 vote.

The central rallying point for opponents of the unamended bill is a site called SaveTheInternet.com. The charter members of the site are a diverse crowd that includes well-known professors such as Lawrence Lessig and Timothy Wu, and Berkman Center fellows David Weinberger and David Isenberg. The SaveTheInternet.com Coalition was launched on April 24, 2006, and in less than a week gathered 250,000 signatures in favor of the Markey Amendment (to be proposed in full committee since it had failed in subcommittee). (