FCC Net Neutrality Decision Faces Tenuous Existence

News Analysis: The Federal Communications Commission's newly adopted rule enforcing limited network neutrality faces dim prospects for a long existence in the face of strong industry and congressional opposition.

The new Federal Communications Commission rule approved Dec. 21 on a 3-2 party line vote imposing limited network neutrality on Internet service providers dissatisfied even its supporters and is likely to be nullified by lawsuits and congressional action before it has a chance to take practical effect. 

However, its strongest supporter, FCC Chairman Julius Genachowski, released a statement after the vote explaining the Commission's actions in adopting the new rule. Notably, he started with a quote from Tim Berners-Lee, inventor of the World Wide Web, who said "The Web as we know it [is] being threatened."  

Genachowski then went on to explain why he believes the newly approved rule adopting net neutrality regulations is basically a good thing. Genachowski's statement said that Internet users have the right to know the terms regulating their Internet access and how their network is being managed. He also said that customers have the right to send and receive lawful traffic without hindrance by Internet providers. He said that the FCC is not approving any sort of pay for priority discrimination. 

Genachowski contends that broadband providers have the right to manage their networks to deal with congestion, and he said that the open Internet also applies to wireless networks, saying that wireless providers may not block some Websites or competitive applications. 

Genachowski also noted that he is forming an Open Internet Advisory Committee that will assist the Commission in monitoring the state of openness and the effects of the rules. In addition, he said the FCC is launching an Open Internet Apps Challenge that will encourage developers to build applications that will let consumers find out information about their broadband connections. 

What Genachowski does not say in his statement is that only one other Commission member concurred fully with the decision. Even that commissioner, Michael J. Copps, has some serious reservations. He said he thinks today's rule belongs under Title II of the FCC's enabling statute. He also said more needs to be done to discourage "pay for priority," giving most people a second-class Internet. "Today's action could-and should-have gone further," he said. 

FCC Commissioner Mignon L. Clyburn, while voting in favor of the rule, only concurred with parts of it. This is, at best, a very weak vote. In fact, it's just barely more than half a vote. "Left to my own devices," Clyburn said, "there are several issues I would have tackled differently." She said those rules included extending all rules for the fixed-line Internet to the mobile Web. She also said she would prohibit pay for priority arrangements altogether, calling them harmful. She noted that she's not sure that the rule is on solid legal footing. 

But the most strenuous objection comes from across the table from Genachowski. It is Robert McDowell who takes very strong exception in his statement, and in his vote, against the new rule. McDowell said that in adopting its order the FCC is exceeding its legal authority. Furthermore, he said he thinks that the decision in the DC Circuit Court regarding Comcast will be upheld in regard to the new law.