Nailing Jell-O to the Wall: An Analysis of the Federal Communication Commission's 2015 Open Internet Order
Duration: 81 minutes
Law professor Tim Wu is credited with having coined the term “Net Neutrality” and has described the internet as “a kind of perpetual frontier, the place where everyone gets a shot, where the underdogs have a chance.” The foundation of the net neutrality concept is the belief that everyone has the same access to the internet. The White House wrote in 2015 that “an entrepreneur’s fledgling company should have the same chance to succeed [on the internet] as established corporations and access to a high school student’s blog shouldn’t be unfairly slowed down to make way for advertisers with more money.” Only through such “Net Neutrality” can the internet remain a fair and level playing field.
However, regulating the internet and insuring equal access for all is no easy task. As former President Bill Clinton so famously remarked, regulating the internet is like “nailing Jell-O to the wall.” The Federal Communications Commission gave it a try in 2010 when it approved the Open Internet Order, which focused on three primary rules regarding the internet: transparency, no blocking, and no unreasonable discrimination. Proving just how elusive the Jell-O can be, the United States Court of Appeals for the District of Columbia, in the 2014 Verizon case, struck down the “blocking” and “anti-discrimination” rules, while upholding the transparency rules.
Rather than appeal the Verizon case, the FCC sought to publish new rules in 2015 that were consistent with the court’s opinion. Most significantly, the FCC’s 2015 Open Internet Order reclassifies internet providers as entities subject to most common carrier regulations under Title II of the Communications Act.
Despite these most-recent efforts by the FCC, the Jell-O keeps moving. Telecommunications experts Mark Palchick and Rebecca Jacobs tell us that there still remains a fair amount of confusion concerning exactly the 2015 Open Internet Order.
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