As telephone and digital companies continue to grow through mergers and acquisitions, network ('' net '') neutrality, has become a contested area of law in the United States. Contoversial statements from Telco officials, as telephone networks appear to monopolize, has fueled the fire of independent Internet giants, such as Google, eBay, and Amazon, who fear that network owners will create a biased, two-tier Internet system, unfairly placing the telco services first, above all others. In addition, there is concern that network owners may seek to entirely censor or block content at their own discretion, thus creating an imbalance of partality.
Website Hosting Directory, determined to examine the ramifications of this most polarizing, complicated, free speech issue, and the recent legislative defeat of attempts to enshrine the principle of net neutrality, in the United States.
Information on cable networks has been traditionally crowned as content, that the vendor may regulate at will, under the First Amendment. As networks increasingly provide the same services, and have come under the same ownership, it has become difficult to justify and manage different sets of rules based on the underlying technology. This has lead to the question of which rules should apply. The FCC re-classified DSL as an information service in 2005, the same year that the US Supreme Court in FCC v. Brand X upheld the classification of cable Internet access as an information service.
The recent Amendment before the Senate, was defeated by 269 votes to 152 and the Communications Opportunity, Promotion and Enhancement Act (Cope Act) was passed by 321-101 votes. Some fear the decision will mean Internet providers will start deciding on behalf of customers which websites and services they can visit and use. The rejection of the principle of net neutrality came during a debate on the Cope Act, which, among other things, aims to make it easier for telecom firms to offer video services around America by replacing 30,000 local franchise boards with a national system, overseen by the Federal Communications Commission (FCC).
The vote is a defeat for Google, eBay and Amazon, who mounted compelling lobbying campaigns prior to the vote in the House of Representatives. Representative Fred Upton, head of the House Telecommunications Subcommittee, indicated that competition could mean consumers will save $ 30 to $ 40 each month on Internet access fees. An Amendment to the Act attempted to add clauses that essentially would require that Internet service firms treat all of the data passing through their cables, equally. The amendment was thought to be needed after the FCC discarded its rules that guaranteed net neutrality.
Catherine England, a spokseperson for eBay, commented, '' eBay supports Net Neutrality legislation that will prohibit Network Operators from replacing the robust open Internet with '' Pay to Play '' private networks that will force out and discriminate against content and service providers that refuse to pay new tolls. The Internet is a global network based on the principle of openness, potentially connecting everyone with everyone. As we have seen with eBay, PayPal, and Skype, the Internet has the power to create communities on a scale never seen before. Replacing the Internet with technologically advanced but closed '' private networks '' will end the Internet as we know it and reduce the ability of Internet users to reach a global market. Small business sellers rely on that global community and could be hardest hit by new fees and tiered services that impede existing and potential customers from accessing their sites. ''
House Democratic leader Nancy Pelosi commented, that without the Amendment, '' telecommunications and cable companies will be able to create toll lanes on the information superhighway. This strikes at the heart of the free and equal nature of the Internet. '' Speaking at a conference in late May, web creator Sir Tim Berners-Lee warned that the net faced entering a '' dark period, '' if access suppliers were allowed to choose which traffic to prioritize.
Critics of the Amendment said it would bring in unnecessary government regulation. Prior to the vote, Internet companies concerned about the effect of the amendment on business and lobbied hard in favor of the Amendment, fostered by fear that their websites will become hard to reach or that they will be forced to pay to guarantee that they can get through to web users.
In a statement released by NETCompetition.org, Meg Whitman, Chief Executive Officer of eBay, e-mailed more than one million members of the auction site asking them to back the idea of net neutrality, while Eric Schmidt, CEO of Google, called on staff at the search giant to support the idea, and film stars such as Alyssa Milano also backed the Amendment.
The exact interpretation of "net neutrality" is a subject of contention, due to the highly politicized use to describe both contemporary and potential usage of the Internet, as well as the proposed governmental role in regulating Internet-related trade and communications. According to Columbia University Law Professor Tim Wu, '' net neutrality '' is a term that originally identified network bias toward or against particular classes of application or providers of content or services. According to Mr. Wu's analysis, the Internet is not neutral but should strive to be. Referring to bias in Transmission Control Protocol / Internet Protocol (TCP) against real-time applications to support that point, this apolitical and technological view has been embroidered by telcos and cable companies arguing against new regulations.
The term also stands for the general principle that network providers should not discriminate between people or organizations that provide services over a network. Companies selling broadband Internet access to consumers should not make contracts with service providers (such as websites) to provide better Internet access than is available for service providers who do not have such agreements.
In US politics, network neutrality refers to a range of proposed legislation with varying goals related to restricting the billing of data transfers by telcos, commonly including a prohibition against the sale of voice or video-grade Quality of Service (QoS) enhancements for a fee . (Bills sponsored by Representatives Markey, Sensenbrenner, et al., And Senators Snowe, Dorgan, and Wyden have included this particular QoS prohibition.) The terms of this debate place neutrals (such as the Internet's largest content providers), who wish to Enshrine one current business model for the sale of Internet access by Internet service providers to content providers in law, versus free-marketeers (including Telcos) who argue against such regulation, deeming it to be counter-productive and even unconstitutional.
The ending of net neutrality rules has also spawned the creation of activism sites such as '' Save The Internet '' and '' Its Our Net. '' Organizations such as '' Common Cause, '' elicit support, citing media giant privatization as a cause for concern. Telecommunications companies like AT and T and Verizon, are lobbying Congress for the right to control Internet connections, research, and the service costs involved. Common Cause maintains that if successful in Congress, companies will open the door to violate consumer civil rights to access any web content desired, post content, and use any application, without restrictions or limitations imposed by Internet service providers (ISPs).
NETCompeition.org, is an e-forum that was started to promote a rigorous debate on the merits of net neutrality legislation and regulation. NETCompetition.org is funded by a wide range of broadband telecom, cable, and wireless companies that believe the best way to guard a free and independent Internet is free and open competition, not more government control of the Internet.
According to information released by the company, Scott Cleland, Chairman of NETCompetition.org, revealed how soft-sounding network neutrality language is actually an extremely regressive policy position, in a letter to Senators. Mr. Cleland explained, '' while so-called 'progressives' are champion its merits, mandating net neutrality will essentially end the Internet era of tremendous innovation, growth and progress. '' The full text of Mr. Cleland's letter may be viewed here: http://www.netcompetition.org/docs/pronetcomp/resources/Net-Neutrality-is-Regressive.pdf.
Scott Cleland is one of nation's foremost techcom analysts and experts at the nexus of: capital markets, public policy and techcom industry change. He is widely-respected in industry, government, media and capital markets as a forward thinker, free market proponent, and leading authority on the future of communications.
Is Net Neutrality Modern-Day '' Internet Luddism ''?
In his letter to Senators, Mr. Cleland stated, '' Neutrality-Luddites seek government protection to insulate them from technology change, competition and progress, '' comparing net neutrality advocates to the British workers who rioted and destroyed the labor-saving technology they feared would diminish employment, the 19th century Luddites. Mr. Cleland goes on to describe net neutrality as a stealth depression-era technology model, based on the outdated and discredited approach that Government can better manage technology / economic tradeoffs than markets. Mr. Cleland asks, '' Is the Internet really like every other business and technology that came before it? ''
According to Mr. Cleland, Net Neutrality will block, deteriorate, and hurt America's technology progress, as well as the diversity of broadband choices for consumers, explaining, '' Currently, the net neutrality proposal would reduce the average speed and responsiveness of the Internet for everyone by destroying any economic incentive to invest to meet exploding demand for bandwidth. If it succeeds, network neutrality would impair America's economic growth, productivity and international competitiveness by regulating the market's natural ability to respond efficiently to new demands and risks. ''
Intellectual Property Attorney, Philip Graves, of global law firm, Squire, Sanders and Dempsey LLP, had this to say concering the legalities of net neutrality, the defeat of the Amendment and passage of the Cope Act:
'' Currently, the concept of net neutrality as a limitation on the right of broadband providers to charge content providers for enhanced quality of
service offerings is not part of the legal environment, and the defeat of the Markey Amendment appears to have resolved that issue in the House. Absent action by the Senate, it appears likely that broadband providers will have the freedom to leverage their position as the operators of the Internet superhighway by negotiating tiered pricing structures with content providers. Regardless of results in greater consumer choice and efficiency through price and usage-driven innovation, or results in diminished consumer choice due to onerous fees and restrictions imposed on content providers, remains to be seen and will be closely monitored by Congress and the FCC. One thing is certain: this issue is not going away any time soon, as two additional bills addressing net neutrality – the Communications, Consumer's Choice, and Broadband Deployment Act in the Senate, and the Internet Freedom and Nondiscrimination Act in the House – are still pending before Congress. ''
Attorney Philip Graves focuses his practice on patent, trademark and copyright infringement, unfair competition, misappropriation of trade secrets, breach of contract and business torts incorporating software and technology, and other technology-related disputes. Selected as one of Southern California's Super Lawyers in 2004, 2005 and 2006, Mr. Graves lectures on developments in patent, trademark and copyright law to professional and industry associations, and is a member of the California, Washington and Alaska Bar Associations.