Arnold & Porter on net neutrality

The Washington / London based law firm of Arnold & Porter has just released a paper [ pdf] that discusses recent developments in net neutrality in the United States. The piece is a chapter in an upcoming book: Telecommunications Laws and Regulations 2009.

The piece is an excellent review of the Comcast case in front of the FCC, presented with a history and a review of the jurisdictional questions.

According to the paper, the issue isn’t whether ISPs can manage their internet traffic. It cites a Federal Trade Commission, (the US federal regulatory agency with jurisdiction to enforce antitrust and consumer protection laws) report that said:

the use of bandwidth intensive applications like certain peer-to-peer file-sharing protocols by even a small minority of users is already consuming too many network resources as to be worrisome … [and] even a small portion of Internet users may effectively degrade service for the majority of end users.

Rather, the issue is whether those ISPs should be free to address this problem without government involvement to guard against improper limits on public access to the Internet content.

The advice to ISPs in the interim is to provide consumers with relevant information about limits on their use of their service, but it is unclear how much detail must be provided; and, to apply network management techniques that are “narrowly tailored” to meet the harms they are designed to address.

The Comcast case is far from over. As was noted in the Arnold & Porter paper, “the lack of a factual basis for the conclusion that Comcast was acting discriminatorily may prove problematic for the Commission.”

It would be nice to see a similar review of net neutrality in Canada. References, anyone?

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