What Is Net Neutrality?

Will new federal rules make the Internet better?

Adam Freedman
4-minute read

Can the FCC Enforce Net Neutrality?

In December 2010, the US Federal Communications Commission, or FCC, adopted a series of “Open Internet Rules” designed to enforce the principles of net neutrality.   The rules would forbid Internet service providers from blocking lawful content, and would forbid discrimination in transmitting lawful content.

But it’s not clear whether those rules have any teeth.  First, the House of Representatives has voted to block the FCC from enforcing the rules.  And secondly, at least one Internet service provider (Verizon) has challenged the validity of the rules in court. 

Can the FCC Make the Law?

Supporters of net neutrality argue that broadband providers perform a public service.

The main legal argument against the new rules is that they go beyond the FCC’s authority.   As a federal agency, the FCC has no independent power to make “law”; instead it can only make regulations that implement some law already passed by Congress.  But Congress has never passed a net neutrality statute.

In adopting the net neutrality rules, the FCC relied on its general grant of power from Congress.  But many experts agree that the FCC is probably skating on thin ice.

What Is the FCC?

The FCC was created by the Communications Act of 1934 which gave the agency power over certain public means of communication (technically known as common carriers) including telephones and radio and TV broadcasting.   In 2002, however, the FCC concluded that broadband Internet service is not a communications service within its mandate, leaving the agency with only a limited power to address Internet issues. 

An Appeals Court Rules Against the FCC

In April 2010, a federal appeals court actually overturned an earlier attempt by the FCC to enforce net neutrality rules.  That case arose from an order by the FCC against Comcast, penalizing the service provider for interfering with certain peer-to-peer networking applications.  The court held that the FCC has no legal authority to enforce anti-throttling rules.