Emily Harrison, MJLST Staff
The United States Court of Appeals for the D.C. Circuit twice struck down key provisions of the Federal Communication Commission’s (FCC) orders regarding how to ensure an open Internet. The Commission’s latest articulation is its May 15, 2014 notice of proposed rulemaking, In the Matter of Protecting the Open Internet. According to the proposed rulemaking, it seeks to provide “broadly available, fast and robust Internet as a platform for economic growth, innovation, competition, free expression, and broadband investment and deployment.” The notice of proposed rulemaking includes legal standards previously affirmed by the D.C. Circuit in Verizon v. FCC, 740 F.3d 623 (2014). For example, the FCC relies on Verizon for establishing how the FCC can utilize Section 706 of the Telecommunications Act of 1996 as its source of authority in promulgating Open Internet rules. Additionally, Verizon explained how the FCC can employ a valid “commercially reasonable” standard to monitor the behavior of Internet service providers.
Critics of the FCC’s proposal for network neutrality argue that the proposed standards are insufficient to ensure an open Internet. The proposal arguably allows broadband carriers to offer “paid prioritization” services. The sale of this prioritization not only leads to “fast” and “slow” traffic lanes, but also allows broadband carriers to charge content providers for priority in “allocating the network’s shared resources,” such as the relatively scarce bandwidth between the Internet and an individual broadband subscriber.
Presuming that there is some merit to the critics’ arguments, if Internet Service Providers (ISPs) could charge certain e-commerce websites different rates to access a faster connection to customers, the prioritized websites could gain a competitive advantage in the marketplace. Disadvantaged online retailers could see a relative decrease in their respective revenue. For example, without adequate net neutrality standards, an ISP could prioritize certain websites, such as Amazon or Target, and allow them optimal broadband speeds. Smaller and mid-sized retail stores may only have the capital to access a slower connection. As a result, customers would consistently have a better retail experience on the websites of larger retailers because of the speed in which they can view products or complete transactions. Therefore, insufficient net neutrality policies could potentially have a negative effect on the bottom line of many e-commerce retailers.
Comments can be submitted in response to the FCC’s notice of proposed rulemaking at: http://www.fcc.gov/comments