It’s important to emphasize, however, that the court’s decision was not rooted in a lack of support for network neutrality principles.  The question before the court was whether the FCC possessed the legal authority to enforce a principle like network neutrality under its very general ancillary jurisdiction.  Without diving into the complexities of administrative law, federal agencies are created by statute and are thus limited in power depending on the formulation of the particular enabling law.  The FCC is a creature of both the 1934 and 1996 Telecommunications Acts – neither of which gives the FCC the explicit authority to regulate ISPs.  What the FCC was attempting to do with Comcast was use its delegated “ancillary jurisdiction” to regulate Comcast’s network traffic.  But ancillary jurisdiction, almost by definition, has to be ancillary to some express delegation of regulatory authority, which the FCC does not have over ISPs.  This is precisely what the D.C. Circuit said.  It rejected the FCC’s argument that ancillary jurisdiction can be used to further general expressions of policy in the FCC’s enabling statute.  According to the court, ancillary jurisdiction means ancillary to delegations of authority, not expressions of policy.

But this is not necessarily the end of the road.  The Supreme Court might step in and reverse, although I personally don’t see that happening.  Jack Balkin notes that the FCC might change course and assert its express Title II authority over “common carriers” as a jurisdictional grant over ISPs — a route it chose to avoid several years ago in the hopes of lessening the regulatory constraints that come with acting pursuant to express and limited jurisdictional grants (a.k.a. obeying the law).

Unfortunately, the most legally sound option, in my opinion, may actually be the most unlikely to occur.  The most legitimate way for the FCC to assert jurisdiction over ISPs such as Comcast is for Congress to explicitly expand the FCC’s grants of jurisdiction to include ISPs.  Such legislation would require a political will (i.e., 60 votes) negating the influence of special interests in Washington — namely the interests of broadband providers like Comcast.  It just might take a few more years of blocked internet traffic for this type of climate to develop.

Jack Balkin argues that contemporary First Amendment doctrine is irrelevant in the face of 21st century free speech issues.  The modern day battle, as he sees it, is framed in the following way:

New technologies offer ordinary citizens a vast range of new opportunities to speak, create and publish; they decentralize control over culture, over information production and over access to mass audiences. But these same technologies also make information and culture increasingly valuable commodities that can be bought and sold and exported to markets around the world. These two conflicting effects- toward greater participation and propertization – are produced by the same set of technological advances. Technologies that create new possibilities for democratic cultural participation often threaten business models that seek to commodify knowledge and control its access and distribution. Intellectual property and telecommunications law may be the terrain on which this struggle occurs, but what is at stake is the practical structure of freedom of speech in the new century.

This dynamic certainly implicates free speech.  But the way I see it, this is a problem that is blind to the First Amendment itself – which prevents the government from abridging speech.  All of this implicates private parties in the private sphere.  Without a complete re-articulation of what the First Amendment is designed to guard against, it would seem that the Constitution is inapplicable here, right?

I recently came across a paper that makes an interesting argument.  The author argues that network neutrality legislation would likely trigger intermediate scrutiny by the courts, but might not survive it.  This is because network neutrality is akin to “must-carry” provisions that the Supreme Court has addressed in other contexts – namely in Turner v. FCC.  In order for the court to justify “must carry” provisions, which the author analogizes to network neutrality legislation, the government must demonstrate, with substantial evidence, that a real harm exists and that regulation will alleviate the harm.  Because the author thinks that the Court might find the harms surrounding network neutrality “conjectural,” legislation will not survive the inquiry.  In the face of this, the author essentially calls for a new First Amendment that recognizes the multi-speaker environment of the Internet.

I have two responses to this argument.  First, the paper seems to have been published prior to the Comcast/BitTorrent fiasco which put a very real face on the network neutrality debate.  If the harms of discriminatory policies implemented by ISPs were conjectural before the Comcast example, it certainly can’t be considered such in the wake of it.  So, if the author’s doctrinal rubric is the one that prevails in the courts, net neutrality legislation might survive a challenge.  That is, of course, if such legislation is ever passed.  The FTC is apparently warming up to enforcing such policies, but I feel like we’ve been hearing this for years.

Second, it seems that we should keep the First Amendment out of this debate.  If network neutrality is justified, it should be because policy makers on the ground see the regulatory merits in mandating non-discriminatory access to Internet content, notwithstanding the economic interests of the ISPs.  It seems unnecessary and unwise to create first amendment rights enforceable against private entities.

Some sites, like Twine and hakia, will try to personalize searches, separating out results you would find interesting, based on your Web use. Others, like Searchme, offer iTunes-like interfaces that let users shuffle through photos and images instead of the standard list of hyperlinks. Kosmix bundles information by type — from Twitter, from Facebook, from blogs, from the government — to make it easier to consume.

Imagine these new companies actually obtained a significant amount of market share.  Imagine further that Google and Yahoo, threatened by this new competition, could pay Internet Service Providers for traffic priority.  The ISPs accomplish this by significantly slowing down the traffic to these alternative search engines.  Users, frustrated by a perceived slower service, return to Google and Yahoo, thereby restoring the online order.

Those of us who are satisfied with Google search may not find this problematic.  But the problem is that this cuts against the merit system of the marketplace.  We want new companies and new technologies to either fail or succeed based upon their value to society.  And we want Internet users to determine this value without undue interference from more powerful market incumbents.  While competition certainly drives innovation, unfair competition without a doubt suppresses it.

This hypothetical might be somewhat unrealistic since Google has been a powerful voice for network neutrality.  We probably don’t expect this kind of conduct from a company whose slogan is “Don’t do evil.”  However, the marketplace is very often amoral and Google’s policies may abruptly change if they ever found themselves under the gun.  But even if not, there are many other contexts in which we can imagine something like this taking place, including online video sharing (YouTube), social networking (Facebook), or VoIP (Skype).

Insofar as network neutrality prevents this from occurring, it sure seems like desirable public policy.

This reluctance to accept government funding shows that major ISPs realize that acceptance of stimulus funds puts them squarely under the FCC Network Neutrality principles.   These principles could bleed into the other networks—such as Verizon’s FiOS TV or AT&T’s U-Verse—that these large Internet players own.   Meaning this policy would be the camel’s nose under the tent.

Putting aside whether this is good for the public or not, I can’t really blame them.  They need neither the money nor the headache that the stimulus funds carry with them.

The 2005 network neutrality principles outlined by the FCC are the heart of the hook attached to the stimulus bill.  These principles include four declarations that, on the their own, seem rather toothless.  According to the FCC, consumers are entitled to: (1) access the lawful content of their choice; (2) run applications and services of their choice, subject to the needs of law enforcement; (3) connect to their choice of legal devices that do not harm the network; and (4) competition among network providers, application and service providers, and content providers.  However, last year’s FCC decision in the Comcast dispute may end up demonstrating that these principles, and the FCC as a whole, do have some teeth.  Whether the FCC exceeded its authority in ruling against Comcast is still an issue on appeal and may eventually become the next landmark cyber/telecommunications law decision handed down by the Supreme Court.

What’s interesting about the fourth FCC principle outlined above is that it seems to cut in favor of those against network neutrality.  For instance, Christopher Yoo argues that leaving the issue to the market will lead to the emergence of providers that specialize in particularly high or low bandwidth traffic.  Thus, VoIP, online gaming, and video streaming might be provided by separate BSPs than those that simply provide access to traditional email and websites.  The higher bandwidth services may simply cease to exist under an aggressive form of net neutrality because providers would be unable to allocate the bandwidth necessary to effectively run the programs.

Perhaps what this demonstrates is that the FCC recognizes that articulating proper network neutrality rules is, much like anything, an exercise in balance.  As Timothy Wu points out, there is good and bad discrimination.  Good discrimination is allocating higher bandwidth applications the muscle they need to effectively exist.  Bad discrimination is blocking users’ ability to connect to lawful applications of their choice on the basis that such applications are competitors of another facet of a BSPs enterprise.  The former protects the market for these applications and incentivizes innovation in future technologies.  The latter does the exact opposite by giving BSPs such as Comcast monopolistic powers that serve only their own interests.

Another issue this raises is the FCC’s unclear ancillary jurisdiction.  After the Supreme Court decided National Cable & Telecommunications Association v. Brand X, the FCC was free to label cable internet as an “information service” rather than a “telecommunications service.”  This meant that cable internet providers were not subject to the more invasive regulatory schemes of the 1934 Telecommunications Act and gave the FCC a little more wiggle room under its ancillary jurisdiciton.  But do the strings attached to the broadband stimulus funds make those funds a little less appealing if you’re a BSP?  Would you take the bait if you were a BSP and subject yourself to uncertain future regulation?  The answer will surface in the weeks and months ahead.

Network neutrality proponents are likely feeling confident these days.  The FCC, both houses of Congress, and the President are currently all on their side and we seem to be heading toward a significant policy of net neutrality in the coming months and years.  If we do have neutrality rules, it seems best for them to stem from the FCC and not from Congress.  Technical decisions such as these are better suited for policy makers on the ground.  Yet the Internet’s fate may depend upon the future net neutrality rules that the FCC adopts.  The challenge is to balance the delicate interests and incentives that exist in the marketplace in order to ensure that BSPs, content providers, and end-users all obtain enough of what they want to keep the system running.