Network Neutrality Debate Heating Up
Federal Communications Commission Chairman Julius Genachowski, recently conducted meetings with many industry and advocacy groups regarding the pending reclassification of the Internet for regulatory purposes under the Communications Act of 1934. It is likely that these meetings were in response to the recent decision in Comcast v. FCC, where the FCC was found to lack ancillary jurisdiction to regulate the network management actions of an internet service provider. The FCC asserted it possessed the ability to regulate the Internet based upon its ancillary jurisdiction. Therefore, the FCC could require Comcast to grant it the authority regarding the creation of Comcast network management policies so as not to impede access to the Internet by non-Comcast applications. The D.C. Court of Appeals determined the FCC lacked the ancillary jurisdiction to regulate the Internet because the FCC assertion was based solely upon policy statements contained within the Communications Act of 1934 and not specific statutory power contained within the Act. The ruling rejected the FCC’s claim to have authority to regulate the Internet through policy pronouncements and specific congressional approval contained within legislation. FCC network neutrality policy after the Comcast decision was found to be without support or authority.
It is likely that Chairman Genachowski’s meetings were intended to predict political climate which might result if the FCC pursues a reclassification of the Internet. Currently, the Internet is classified as an information service as opposed to a common carrier. Common carriers, are subject to more detailed regulation when it comes to topics such as rates charged for utilizing the communication system, universal service, accessibility, and other network management issues.
It is uncertain if Native American Tribes or Tribally owned telecommunications companies have been included in Chairman Genachowski meetings. Although the policy and legal discussion will still be sent back to Congress for consideration before the FCC can proceed with the reclassification of the Internet, the initial salvo has already begun in important Senate and House Committees. In mid-June, a letter sent from Senator Dorgan to Senator Inouye expressed concern that someone may seek to attach a rider to the 2010 appropriations measure which would severely restrict the FCC’s authority when it comes to network neutrality. In the letter, Dorgan specifically states that the FCC “must move forward to ensure solid legal footing” for policies which reform universal service to support broadband and connectivity to Native Americans on tribal lands among other issues. Tribal interests in the future of the Internet have already been sidelined in favor of large corporate interests because large businesses have established platforms which now control access to the internet, which has become an important part of daily life. Tribal governments and tribally owned telecommunications companies should be focused upon engaging with both the FCC and Congress on the future of the Internet and Network Neutrality.
Thank you for this helpful information.