FCC Rules on Net Neutrality

Commissioner Clyburn, Commissioner Copps, Chairman Genachowski,
 Commissioner McDowell, Commissioner Baker - October 2009

The FCC, on a 3 to 2 vote has issued its first Net Neutrality Rule with the intent of  preventing cable and DSL internet service providers from unduly influencing the open, free-wheeling nature of the internet. Chairman Genachowski voted for the Order; Commissioner Copps concurred and Commissioner Clyburn approved in part and concurred in part.  Commissioners McDowell and Baker dissented.

FCC Statement

Critics are slamming the rules as woefully inadequate to protect the public from the predations of an industry keen on turning the internet into a cyber-version of cable TV, with tiers and premium packages affordable by the wealthy. However, the new rules seemed to be okay with the nation’s cable and telecommunications companies, including AT&T, Comcast and Verizon.

Although the Obama administration hails the rules as fulfilling a campaign pledge — net neutrality — critics say the rule only consigns the issue to more lawsuits and uncertainty.

For the first time, federal policy allows for so-called reasonable “paid prioritization,” which critics argue is the first step toward cleaving out high-speed, premium fast lanes from the “public internet.” This could jeopardize internet innovation by disincentivising entrepreneurial activity on the free, or regular, internet.

In 2005, then-FCC chairman Michael Powell issued a set of principles, the so-called Four Freedoms:

1) internet users had the right to use the lawful software and services they want to on the internet,

2)  access their choice of content,

3) use whatever devices they like, and

4) get meaningful information about how their online service plan works.

The principles applied explicitly only to cable and DSL connections, and the FCC didn’t say if they applied to wireless providers, such as 3G plans for cellphones.

Both wireless and fixed broadband service providers will have to explain how they manage congestion on their networks. Cable and DSL companies will have to let you use the applications, online services and devices that you want to. Meanwhile, wireless companies will be prohibited from blocking websites and internet telephony services like Skype. Cable and DSL providers would be barred from “unreasonably” discriminating against various online services. It is unclear what will constitute the FCC’s standard of “unreasonableness.” But if the FCC determines such “unreasonable” discrimination is occurring, the FCC says it has the power to enjoin — or stop — the behavior, as well as issue fines or even seize assets.

Critics are calling the new rules “fake” net neutrality and believe the new rules open the possibility of providers creating internet fast lanes and slow lanes (for instance, charging YouTube to get to customers faster). Mobile carriers will also be free to charge users extra to watch online video services.

In the Bush years, the FCC deregulated broadband. That move declared that the Internet was not a communication service, which means the FCC has little authority over it. (Except oddly, when it comes to the rules about making the internet wiretap-friendly for the government, in which case, broadband is considered a communications service and thus carriers have to build-in wiretap equipment).

These net neutrality rules aren’t based on the FCC’s authority to regulate broadband internet service, which was struck down last April in the landmark Comcast federal appeals court decision.  Instead, the commission is relying on the authority of a hodgepodge of provisions cobbled together from the 1996 Telecommunications Act — authority the commission insists it can defend in federal court. One of those provisions gives the FCC authority to regulate video games. (Wired, 12/20/2010)