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.
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.
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
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.
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
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
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.
Wayne Rash is a Senior Analyst for eWEEK Labs and runs the magazine's Washington Bureau. Prior to joining eWEEK as a Senior Writer on wireless technology, he was a Senior Contributing Editor and previously a Senior Analyst in the InfoWorld Test Center. He was also a reviewer for Federal Computer Week and Information Security Magazine. Previously, he ran the reviews and events departments at CMP's InternetWeek.
He is a retired naval officer, a former principal at American Management Systems and a long-time columnist for Byte Magazine. He is a regular contributor to Plane & Pilot Magazine and The Washington Post.