Report Shows FCC's Preoccupation with Legal Justifications
This is bad enough, but fully one-third of the R&O is consumed with legal justifications as to why the net neutrality Order is OK, even though a very similar practice was overturned by the U.S. District Court for the District of Columbia early in 2010. According to FCC Chairman Julius Genachowski's interpretation, the Communications Act of 1996, Section 706(a) is written to encourage the deployment of "Advanced telecommunications capability, including broadband internet access." The FCC says that such a move is necessary because some carriers are taking actions contrary to the Open Internet requirement, such as blocking some Internet sites that compete with their own offerings.
The FCC also expressly prohibited paid prioritizations, apparently spurred on by previous complaints from AT&T that wanted to engage in such practices. Beyond that, the commission's justification as to why it should be allowed to ignore the DC District Court'sComcast decision descended into minutiae. While the legal arguments did attempt to short circuit complaints by AT&T and Verizon that the Net Neutrality rules were either restrictions on First Amendment speech (AT&T felt that paid priority was a form of protected speech), or unlawful taking under the Fifth Amendment (it wasn't clear what they thought was being taken from whom).
The larger unspoken question of why the rule was necessary was addressed in the introduction. A number of large ISPs (AT&T and Comcast) had violated the principles of an Open Internet on an egregious basis. The commission said it had to step in because many consumers don't have any effective choice as to their provider and are thus unprotected. However, the commission sort of punted in the case of wireless Internet access-an issue specifically mentioned by Commissioner Mignon Clyburn which prompted her to give only a partial concurrence with the order.
As Clyburn pointed out, for many poorer people, the mobile Internet is the only Internet. Given the trend to two-year contracts with Draconian contract terms, these people are effectively stuck with whatever company got their business first. Once signed up, they effectively have no choice.
There is, however, one conspicuously uncertain item about this Report and Order, and that's the fact that its actual effective date is open to question. A legal challenge is a certainty. Right now, advocacy groups are jockeying to see who gets to be the first to sue. Some ISPs or carriers may also sue as well as some industry groups. Even some individuals may sue. These suits may generate stays in the implementation of the Rule. When that happens, the form of the ultimate rule and whether it will ever be implemented is anybody's guess.