    "Net neutrality" is the rule that internet service providers should not be permitted to promote their own information services by blocking or slowing down the transmission of information from other sources – it is the principle that information should be available to all users on an equal basis. Here is a summary of where "net neutrality" presently stands in the courts and in Congress.
    On October 19, 2007, Peter Svensson of the AP reported that Comcast, a major internet service provider, was interfering with peer-to-peer applications allowing file-sharing of movies or television shows and audio/video connections such as Skype by surreptitiously breaking connections between users. Comcast had previously assured the F.C.C. that it was not engaging in this conduct, but after the publication of Svensson's article it was forced to admit that it had. This was in violation of a "policy statement" that had been issued by the F.C.C. prohibiting discrimination of this sort by ISPs. As a result, the internet consumer organization Public Knowledge filed a complaint against Comcast before the Federal Communications Commission. Comcast agreed to stop this practice, but the F.C.C. wanted more – it entered an order requiring Comcast to disclose to the agency any other regulation of internet traffic that it engages in.  Comcast filed a petition in the United States Circuit Court of Appeals for the District of Columbia challenging both the authority of the F.C.C. to regulate the internet, and the procedure that the F.C.C. followed in entering its order against Comcast. Here is a link to the brief filed by Comcast, in which Comcast claims that when Congress enacted deregulation legislation it stripped the F.C.C. of the power to oversee internet service providers. At page 15 of its brief Comcast states:
"There was simply no federal law to interpret, enforce, or apply against Comcast."
    The F.C.C. contends in its brief that Congress did leave it "ancillary jurisdiction" to regulation information services, and that its order against Comcast was justified in light of Comcast's secretive conduct and misleading statements to the F.C.C.
    The case was recently argued before a three-judge panel of the D.C. Circuit, and in this report by John Poirier of Reuters published January 8 it appeared from the judges' questions and comments that the panel may agree with Comcast that the F.C.C. presently lacks authority to issue or enforce net neutrality rules against internet service providers. Here is another informative article about the case by Todd Shields of Bloomberg.
    In addition to the straightforward question of whether the F.C.C. has authority to regulate internet service providers, the Comcast case presents a number of difficult and fascinating problems of adminstrative law, among them the following:
1. How much authority does the F.C.C. have to determine its own jurisdiction?
2. Were the F.C.C. policy guidelines sufficiently precise to notify Comcast what the law was, and were these guidelines enforceable?
3. Was it proper for the F.C.C. to have proceeded against Comcast by way of an adjudication, rather than to have followed a rulemaking procedure?
     All of these issues could be rendered moot if Congress steps in and adopts legislation codifying net neutrality and authorizing the F.C.C. to enforce the principle.  Representative Edward Markey of Massachusetts has introduced legislation that would do this. The bill is called the Internet Freedom Preservation Act of 2009 (H.R. 3458). Here is a link to information about the bill from Open Congress. In its summary of the bill, the Congressional Research Service states that the law:
Makes it the duty of each Internet access service provider to: (1) not block, interfere with, discriminate against, impair, or degrade the ability of any person to use an Internet access service; (2) not impose certain charges on any Internet content, service, or application provider; (3) not prevent or obstruct a user from attaching or using any lawful device in conjunction with such service, provided the device does not harm the provider's network; (4) offer Internet access service to any requesting person; (5) not provide or sell to any content, application, or service provider any offering that prioritizes traffic over that of other such providers; and (6) not install or use network features, functions, or capabilities that impede or hinder compliance with these duties.
     The Internet Freedom Preservation Act would require the F.C.C. to issue regulations enforcing these principles. The law also provides that internet service providers must be allowed to engage in "reasonable service management."
    On October 22, 2009, United States Senators Byron Dorgan (D-ND) and Olympia Snowe (R-ME) issued a press release in support of the F.C.C.'s authority to enforce net neutrality. They concluded by stating:
Dorgan and Snowe were the lead sponsors of network neutrality legislation in the Senate during the last session of Congress. Now that the FCC is taking action to ensure open access to the Internet, the two senators say they will continue to monitor the rulemaking process, and are open to introducing legislation to ensure network neutrality safeguards, if necessary.âAmericans from Bismarck to Bangor want to know that they will have open access to the Internet,â Dorgan and Snowe added. âTo keep the Internet open and accessible, we intend to follow the FCCâs rulemaking process very closely.â
    If the F.C.C. should lose its case against Comcast, the House and Senate will probably move very quickly to enact this legislation.
Visit Professor Huhn's website on Constitutional Law for information and links to sources â both timely and historical â on constitutional law.
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