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Since the Federal Communications Commission (FCC) removed common carriage obligations from Internet cable broadband providers in 2002, free speech and open access advocates have been lamenting the FCC’s market-oriented, laissez-faire approach and have called for net neutrality regulation to remedy the problems brought about by an unregulated market for Internet communications. Such regulation would reimpose some of the common carriage/non-discrimination obligations historically imposed on telecommunications providers and would prohibit broadband providers from censoring, blocking, or otherwise discriminating against any legal content or applications that users sought to communicate via broadband pipes. In August 2008, however, the FCC reversed its laissez-faire course and censured Comcast—one of the nation’s largest broadband providers—for engaging in discriminatory network management practices. In its Comcast order, the FCC condemned Comcast’s practice of engaging in the clandestine blocking of certain peer-to-peer file-sharing applications and ordered it to discontinue these and other “unreasonable” network management practices and to come clean with the public about the ways in which it manages communications on its network.

Some have argued that the FCC’s willingness to act in these circumstances obviates the need for general net neutrality regulation or for broadly-applicable rulemaking by the FCC.6 In this Article, I contend that, while these recent actions by the FCC are a step in the right direction, the FCC’s ad hoc, ex post adjudication actions stand on uneasy jurisdictional footing and, in any case, are insufficient to remedy fully the problems caused by the FCC’s removing nondiscrimination obligations from broadband providers in the first place—most significantly, the harm to the free flow of expression on the Internet. In Part I of this Article, I describe the uneven history of the FCC’s regulatory treatment of Internet service providers (ISPs). In Part II, I analyze the Comcast network management practices that were the subject of the FCC’s August 2008 order, as well as the order itself. In particular, I scrutinize the FCC’s asserted basis for claiming jurisdiction to adjudicate such actions by broadband providers, in light of the fact that the FCC had previously classified such providers as subject to minimal regulatory oversight. In Part III, I contend that—notwithstanding the order and the FCC’s apparent willingness of late to impose checks on broadband providers’ censorial and discriminatory conduct—broadly applicable, ex ante legislative or agency action is necessary to impose general nondiscrimination obligations on broadband providers. Congress should enact net neutrality legislation to prohibit broadband providers from discriminating against legal content or applications in the form of censoring or degrading such expression, or should require the FCC to adopt binding, generally-applicable rules prohibiting such discrimination.

GW Paper Series

GWU Law School Public Law Research Paper No. 2017-39; GWU Legal Studies Research Paper No. 2017-39

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