The Internet was originally built in the USA with a combination of federal government, private and university resources on a foundation of American innovation, openness and nondiscrimination. To sustain its social and economic benefits, the Internet must remain open and free of commercial or government gatekeepers. In 2002-05 the FCC deregulated the broadband Internet access services of cable TV and telephone companies by categorizing them as “information services” rather than telecommunications.
The consumer protections embodied in the FCC’s Internet Policy Statement, meant to substitute for regulation, proved unenforceable under a federal court decision involving Comcast, so in late 2010, the FCC after a lengthy proceeding involving voluminous input from diverse stakeholders, adopted the first open Internet rules which require broadband access providers (IAPs) (1) to clearly disclose all terms of services and network management practices that could affect quality of service; (2) to refrain from blocking any lawful content or applications; (3) not to unreasonably discriminate against any Internet traffic. The FCC did not apply common carrier telecommunications regulation under Title II of the Communications Act, which it has the authority to do. Verizon has challenged the rules in court, and oral arguments will take place in early 2013. A large group of consumer advocates, state regulators and Internet industry groups including CCIA support the FCC rules before the court. The largest Internet access providers argue that open Internet access rules are a government takeover of the Internet itself, but many other diverse parties argue they offer the absolute minimum protection necessary for households and small businesses against market power abuses by duopoly IAPs.
If the FCC open Internet rules are upheld by the Court, the agency will begin in earnest to enforce them though investigation of complaints such as the pending case involving AT&T’s FaceTime mobile application. Another area ripe for FCC consideration is IAPs’ use of monthly data caps to favor their own affiliated video programming or cloud services, by making such services exempt from the volume restrictions and higher pricing tiers, while content from the public Internet will not be exempt.
If the FCC rules are struck down by the Court, various flavors of controversy will arise, ranging from renewed FCC consideration of its “third way” or “Title II lite” proposal to a full scale IAP Congressional lobbying campaign to re-write the Telecom Act of 1996 which they claim is antiquated. CCIA supports the Telecom Act of 1996, which contains pro-competitive interconnection and access measures that should still apply to the critical underlying physical telecommunications network infrastructure upon which the Internet was built and still depends, even as technology has advanced and voice, data and video transmissions are now digital, and circuit switching is replaced with Internet protocol (IP) for everything online.