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Will net neutrality be killed by litigation?

Federal Communications Commission Commissioners (L-R) Mignon Clyburn, Michael Copps, Chairman Julius Genachowski, Robert McDowell and Meredith Attwell Baker deliver opening remarks before they voted 3-2 to adopted controversial net neutrality rules December 21, 2010 in Washington, D.C.

The Federal Communications Commission's new rules are being attacked on multiple sides. Verizon has filed a suit charging that the FCC has no authority in regulating the flow of Internet traffic. Meanwhile, some citizen's groups charge that because the rules don't extend to wireless coverage, they don't go far enough to protect a free and open Internet and protect users against price gouging.

So what do all these suits mean for the future of this policy?

Technology consultant Larry Downes says that the suits are major stumbling blocks to net neutrality ever seeing the light of day. "Well, a lot of this of course is just posturing," he says. "Most of these groups are really trying to make sure they get the case heard in the court that they think is going to be most friendly to them. In the short-term, it means the rules will probably not go into effect, the courts will probably hold up the implementation of the rules until the litigation gets resolved. So the likely outcome is the rules will never go into effect."

Downes believes the real problem here is the FCC overstepping its authority. "It's clear from the last big rewrite of telecom law in 1996. They don't have much experience or authority to deal with internet revolution. Since 1996, everything has changed in traditional things with broadcast and telephone and all these things have converged on the internet. The FCC wants a role, but Congress has not rewritten the law to give it to them."

Andrew McLaughlin is a lecturer at Stanford Law School. He says the rules aren't that important yet, we pretty much have an open Internet. But streaming video is growing fast, there's a lot of money on the line, and that's where you and I will see this war being fought.

McLaughlin says, "A lot of carriers are now both ISPs as well as video programming providers and that's the reason this issue has really come to a head. The first area where you might notice something happening is if your broadband provider at home starts to offer you special rates on their video programming services as opposed to Netflix. When you think about the ability to just sit down and choose any program you want out of a vast library and watch on any device in any location, the convenience is so dramatic that the market uptake has been so tremendous, that I think we can see both more growth in that direction and more panicky defensiveness on the part of video programming providers. Where those companies are broadband service providers they're going to be looking at how to use those networks to maintain as long as possible the revenue streams they've gotten used to from their cable channels."

Also on today's program, a new phone comes on the market. No, not the iPhone, there will be plenty of time to talk about that. This one is just a phone. You can make calls, you can send texts, that's it. No web surfing, no Angry Birds, no video camera. It's incredibly expensive but it's built to be your phone for the next 20 years. We talk to Thomas Moller Jensen, founder of the company Asir.

About the author

John Moe is the host of Marketplace Tech Report, where he provides an insightful overview of the latest tech news.

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