Predicting the Obama Effect on Communications Regulation and Net Neutrality
By Kell C. Mercer
Brown McCarroll LLP; Austin, Texas
Patty Tomasco
Brown McCarroll LLP; Austin, Texas
When last we spoke of net neutrality, the Federal Communications Commission (“FCC”) was considering the case of Comcast which was accused of using new technology to peek inside packets traversing its network and intentionally slowing or degrading the operation of “peer-to-peer” and similar applications. One of the potential motivations for Comcast’s behavior is that peer-to-peer applications are often used to exchange media content [music or video] that might be substituted for the content Comcast sells to its cable customers.[1] On August 20, 2008, the FCC issued its enforcement order requiring that Comcast, a cable operator, stop the challenged network management practices. Comcast, however, was expressly allowed to use alternative network management practices so long as those practices were reasonably disclosed to the FCC and the public.[2] Does this mean that the net neutrality debate is over? Hardly. Net neutrality refers to a broad range of technologies and information that may traverse the Internet and the ability of various users to access and use that technology through their connections. End users like residential cable or broadband customers are connected to the Internet either through the PSTN (public switched telephone network) or cable. That last mile connection is virtually always through an incumbent, former monopoly entity.