While Fox's actions probably didn't violate neutrality principles as currently defined by the Federal Communications Commission, the network's decision nonetheless could prove instrumental in shaping new rules. The current FCC proposal on neutrality would require Internet service providers to access all lawful content. If enacted, that proposal would make it unlawful for ISPs like Cablevision to prevent subscribers from reaching Fox sites, but not vice versa.
But that's only the current version of the neutrality proposal. Fox's steps this weekend could easily result in new blueprints for regulations. After all, the current neutrality debates were kicked off when former AT&T CEO Ed Whitacre complained that Google was getting a "free ride" on the telecom's pipes. At the time, some industry observers could imagine that ISPs would degrade traffic to sites like Google, but not too many people seemed to envision that publishers would block users because of disputes with their ISPs.
But now that Fox appears to have discriminated against users of a particular ISP, policymakers could well decide that they have to protect Web users from discrimination based on the identity of their ISP. Already, some lawmakers already are expressing concern over the events of the weekend. Rep. Ed Markey (D-Mass.) sent a letter to the FCC arguing that Fox's actions are contrary to the agency's Internet policy statement of 2005. That statement says that consumers are entitled to access the lawful Web content of their choice. (As it turns out, that statement is unenforceable because the Internet is classified as an information service and not a telecommunications service, but that, too, could change.) Markey went on to urge the FCC "to actively defend Internet freedom and consumer rights."