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FCC Considers Net Neutrality Rules: Tribes Cannot Afford to Remain Neutral : Northwe...

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Northwest Indian Law & Business Advisor
Posted at 10:48 AM on November 2, 2009 by Quanah Spencer

FCC Considers Net Neutrality Rules: Tribes Cannot Afford to Remain Neutral
The free market that is the Internet is a primary universal gateway for commercial transactions,
including those in Tribal economies. The Internet provides access to Indian Country patrons and
customers and may be the only way to reach rural Indian businesses. The free market created and
maintained by the Internet could soon be a federally regulated digital environment where rates will be
charged for data transferred on the Internet and restricted network access.

Domestic telecommunications policy within the United States has until now encouraged the largely
unregulated expansion and modernization of Internet systems and applications to allow ready public
access for commercial and other purposes. Yet now, telecommunications companies are stirring up a
policy debate that could allow these entities to charge rates for data transmission based on the
bandwidth used. Essentially, users would be forced to pay for access for all data transmitted via the
Internet. Telecommunications companies are advocating a tiered pricing system, based on the
bandwidth being used--a strategy which could lead to segregated pricing based upon content of the
data being accessed or type of users accessing the data. The concept of pricing based upon content
and users could be the next battleground in strategic competition for access to the broad markets
provided by an open Internet.

The counter position is known as net neutrality--the advocates for which hold the position that the
Internet must remain open and accessible. Net neutrality proponents fear that segregation of Internet
data or access will impede a free market. In particular, they predict severe negative commercial
effects if Internet access is regulated by the federal government, restrictions are placed on network
performance by telecommunications providers, and/or users are assessed connection speed charges,
Universal Service charges, or tiered charges based upon data or content transmission.

On October 22, 2009, the Federal Communications Commission entered the debate and issued a
proposed rulemaking regarding Internet access. Under the federal Communications Act of 1934, as
amended by the Telecom Act of 1996, Congress detailed an Internet policy rooted in preserving and
further developing the vibrant and competitive free market that exists via the Internet. Through its
proposed rulemaking, however, the FCC could set regulatory standards for, among other things,
various pricing for access to the Internet.

In light of this debate, which will have enormous ramifications, tribes and businesses should begin to
formulate strategic economic development plans that call for the creation of Internet Service
Providers, Exchange Service Providers, broadband capabilities, and cable television ventures
providing services to Indian communities and businesses. Before broadband capability has even 11/3/2009
FCC Considers Net Neutrality Rules: Tribes Cannot Afford to Remain Neutral : Northwe... Page 2 of 2

reached all of Indian Country, tribal access to the Internet–and the commercial opportunity it brings to
reservations–could soon be significantly restricted by federal policy and by telecommunications
providers who seek to control the Internet. That is, unless tribal governments and businesses focus on
this debate and begin exercising Indian Country’s political muscle. Tribes must actively monitor the
FCC’s proposed rulemaking and the overarching net neutrality policy debate; better yet, tribes should
comment on the rulemaking, which is available on the FCC’s web-site.

Indian Country can ill afford to be left on the other side of the digital divide.

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