RCTLJ Symposium 2014 – Are All Bytes Created Equal? The Battle Over Net Neutrality

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What is net neutrality?
Net Neutrality is a concept that says the Internet should be free and open: users should have unfettered access to any service or application on the Internet, and the company operating the pipes that connect a user to the Internet cannot discriminate against or block any content, just as a phone company has to transmit a call that one phone user makes to another.

So the court said net neutrality is bad?
The United States Court of Appeals for the District of Columbia Circuit ruled that the F.C.C. cannot subject companies that provide Internet service to the same type of regulation that the agency imposes on phone companies. It cited the F.C.C.’s own decision in 2002 that Internet service was not a telecommunications service – like telephone or telegraph – but an information service, a classification that limits the F.C.C.’s authority.

So the F.C.C. can’t regulate the Internet?
It can, just not in the manner that it sought to do so. The appeals court said telecommunications laws give the F.C.C. broad power to make rules governing the treatment of Internet traffic by broadband providers, because Congress has directed the agency to promote innovation and the growth of the Internet.

Then what is at stake? Who opposes the F.C.C.’s regulation of the Internet and why?
Rick Wilking/ReutersVerizon challenged the rules set by the F.C.C., arguing that the commission had overstepped the authority granted to it by federal telecommunications laws.
Verizon challenged the rules, saying the F.C.C. had overstepped its authority. Verizon and other Internet service providers say that they should be able to set up specialized services, offering creators of Internet content the ability to pay to move their content through the pipes more quickly. The F.C.C., however, has said those efforts could result in only the richest companies having easy access to consumers, blocking small start-ups – perhaps the next Google or Facebook – from getting a toehold in cyberspace.

What happens now?
The F.C.C. has a few options. It can appeal the decision to the Supreme Court. It can try to rewrite its rules to prevent discrimination or blocking in a way that doesn’t require Internet service providers to provide equal access for everyone for free. Or it could overturn itself, and reclassify broadband as a utilitylike service, subject to strict regulation.
Why can’t the F.C.C. decide what it wants?
The F.C.C. exempted Internet service from utilitylike regulation in 2002, when Michael Powell, a Republican appointee, was chairman. The F.C.C.’s net neutrality rules were enacted in 2010, under Chairman Julius Genachowski, a law school chum of President Obama, who made net neutrality a campaign issue.
Now, the decision on how to proceed is up to Tom Wheeler, the new chairman, who was appointed by Mr. Obama but who has worked as a lobbyist for the cable industry and wireless phone companies. Mr. Wheeler has said he supports an open Internet, but he also has expressed willingness to allow companies to experiment with new ways of delivering Internet service

*Net Neutrality Primer from the NY Times, 1/14/14


Symposium Speakers

Barbara Esbin, Partner, Cinnamon Mueller
Barbara Esbin is a partner with the law firm of Cinnamon Mueller, and head of the firm’s Washington, D.C., office. Ms. Esbin joined the firm in 2010 after an extended tenure with the Federal Communications Commission (FCC), and following her position as a Senior Fellow and Director at the Progress & Freedom Foundation, a Washington, D.C.-based think tank specializing in communications policy and law. Ms. Esbin’s practice includes representing the American Cable Association, the leading national trade association for small and medium-sized cable companies. She also advises a cable, broadband and telecommunications clients, advising on a wide range of strategic and FCC regulatory matters, and provides counsel to investment research groups. Ms. Esbin served for over fourteen years at the FCC in a variety of senior staff positions in the Enforcement, Media, Cable Services, Wireless, and Common Carrier Bureaus, including four years as Associate Bureau Chief at the Commission’s Media Bureau. There, she represented the Bureau on a number of inter-agency efforts and led the review of several major industry mergers and rulemakings addressing cable and broadband competition issues. Between her two FCC engagements, Barbara was a partner in a private law firm, specializing in cable and broadband regulatory issues. Prior to joining the FCC, she specialized in electric utility regulation. Ms. Esbin held judicial clerkships on the North Carolina Court of Appeals and the North Carolina Supreme Court, respectively. She received her J.D. from Duke University School of Law and her B.A. from Antioch College.

John Flynn, Partner, Jenner & Block LLC
Mr. Flynn most recently served as Senior Counsel for Transactions to the Chairman of the Federal Communications Commission (FCC). Recruited from the private sector for this specially created role, he led the FCC’s review of the joint venture between Comcast and NBC Universal, a $30 billion transaction identified by both the Commission and outside observers as one of the most significant media transactions in history. Mr. Flynn was involved in all aspects of the process, from the substantive analysis to the political approval process, including Department of Justice, Congressional and media coordination. He was also a key architect of rules dealing with most of the leading communications issues of today and tomorrow, including those for online video, the Internet and cable and broadcast programming. The transaction review was widely credited as a success. For example, USA Today said: “The Federal Communications Commission and Justice Department did something remarkable on Tuesday: They came up with a set of conditions on a major business deal—Comcast’s acquisition of NBC Universal—that leading consumer advocates and company executives both like.” Mr. Flynn received his J.D., magna cum laude, from the Georgetown University Law Center in 1995, where he served as the Senior Notes and Comments Editor of The Georgetown Law Journal. He received his M.A. in International Policy Studies and A.B. in Political Science, with distinction, from Stanford University. Mr. Flynn clerked for the Hon. Edward R. Becker of the United States Court of Appeals for the Third Circuit in 1995. He then clerked for the Hon. Byron R. White and the Hon. John Paul Stevens on the United States Supreme Court in 1996 and 1997. He is a member of the Bars of California and District of Columbia.

Michael Weinberg, Vice President, Public Knowledge
Michael Weinberg is a Vice President at Public Knowledge, a digital advocacy group in Washington, DC. He is the author of “It Will Be Awesome If They Don’t Screw It Up: 3D Printing, Intellectual Property, and the Fight Over the Next Great Disruptive Technology” and “What’s the Deal with Copyright and 3D Printing?,” whitepapers that examine the intersection of 3D printing and intellectual property law. Although he is involved in a wide range of issues at Public Knowledge, he focuses primarily on copyright, issues before the FCC, and emerging technologies such as 3D printing and open source hardware.

Sarah Morris, Senior Police Counsel, Open Technology Institute
As a senior policy counsel for the Open Technology Institute at New America Foundation, Sarah Morris assists in the research and development of policy proposals related to open technologies, broadband access, and emerging technological issues. Prior to joining New America Foundation, Ms. Morris served as a Google Policy Fellow with the Media Access Project, where she assisted with research and drafting of FCC comments on issues including media ownership, the open Internet and retransmission consent. She earned a B.A. in Political Science and English from the University of Nebraska-Lincoln, and a J.D. and LL.M. in Space and Telecommunications Law from the University of Nebraska College of Law, completing her thesis on privacy and security concerns related to Smart Grid technology.

Matt Wood, Policy Director, Free Press
Matt helps shape the policy team’s efforts to protect the open Internet, prevent media concentration, promote affordable broadband deployment and prioritize a revitalized public media. Before joining Free Press, he worked at the public interest law firm Media Access Project and in the communications practice groups of two private law firms in Washington, D.C. Before that, he served as editor-in-chief for the Harvard Civil Rights-Civil Liberties Law Review, worked for PBS, and spent time at several professional and college radio and television stations. Matt earned his B.A. in film studies from Columbia University and his J.D. from Harvard Law School.

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