Marking a significant policy shift by the Federal Communications Commission, the agency votes to begin consideration of expanded and codified network neutrality rules that Democratic FCC commissioners say will preserve an open Internet.
A
split Federal Communications Commission voted Oct. 22 to begin consideration of
network neutrality rules that would apply to both wired and wireless networks.
The proposed rules would codify the agency's four existing network neutrality
principles and add two more rules of the road for broadband providers: a
prohibition against ISPs discriminating against content or applications, and a
mandate that network management practices be transparent.
The three Democrats on the FCC, including Chairman Julius Genachowski, voted
for the rulemaking process while Republicans Robert McDowell and Meredith
Attwell Baker concurred in part and dissented in part.
Although proponents and opponents of the rules have bombarded the FCC in recent
weeks with comments about the proposed rulemaking, the vote opens the door for
months of continued contentious debate over network neutrality. The agency is
seeking public comment on the proposed rules with initial comments due by Jan.
14 and reply comments due by March 5.
"The draft rules make clear that [broadband] providers [such as AT&T,
Comcast and Verizon] would ... be permitted to address harmful traffic and
traffic unwanted by users, such as spam, and prevent both the transfer of
unlawful content, such as child pornography, and the unlawful transfer of
content, such as a transfer that would infringe copyright," the FCC said
in its news release.
"The
problem is not merely that we've seen some significant situations where
broadband providers have degraded the data streams of popular lawful services
and blocked consumer access to lawful applications, even after the commission
adopted its openness principles," Genachowski said in a statement. "Nor
is the problem merely that, when the policies summarized in the Internet Policy
Statement and its initial four principles have been enforced by the commission,
they have been attacked, including in pending litigation, precisely because
they are not rules developed through the kind of notice-and-public-comment
process that we should commence today."
In
2005, the then-Republican-led FCC voted for four network neutrality principles
that prohibited broadband providers from (1.) blocking any of their users from
sending or receiving the lawful content of the user's choice over the Internet;
(2.) preventing any of their users from running the lawful applications or
using the lawful services of the user's choice; (3.) preventing any of their
users from connecting to and using on their networks the user's choice of
lawful devices that do not harm the network; and (4.) depriving any of their
users of the user's entitlement to competition among network, application,
service and content providers.
At
the time of the 2005 vote, commissioners warned that these "principles"
could be challenged in court since the FCC had not held any hearings on the
principles. After the FCC enforced the principles against Comcast in 2008 for
throttling BitTorrent content, the cable company did, indeed, sue the FCC
contending that the principles have no legal basis.
"The
heart of the problem is that, taken together, we face the dangerous combination
of an uncertain legal framework with ongoing as well as emerging challenges to
a free and open Internet," Genachowski said. "Given the potentially
huge consequences of having the open Internet diminished through inaction, the
time is now to move forward with consideration of fair and reasonable rules of
the road, rules that would be enforceable and implemented on a case-by-case
basis."
He
added, "Indeed, it would be a serious failure of responsibility not to
consider such rules, for that would be gambling with the most important
technological innovation of our time."
McDowell,
who only partially supported the proposed rules, said in a statement, "Some
point to less than a handful of troublesome actions-some
several years old-by a few market players
as sufficient evidence to justify a new regulatory regime. An important fact
lacking in this debate is that once these actions were brought to light,
however, all were resolved without imposing new regulations. Additionally,
given the context of the uncountable number of Internet communications that
occur every day, is such a small number of quickly resolved incidents evidence
that the Internet is breaking to the point of needing more regulation?"
McDowell
said he while disagrees with the "factual and legal predicates" that
brought about Genachowski's expanded network neutrality rules proposal, "I
agree that if we are to have rules the proper way to proceed is a notice of
proposed rulemaking containing the text of proposed rules. These issues are
complicated and highly technical and deserve the lengthy comment period the chairman
has suggested."
McDowell's fellow Republican Baker added, "I am
not convinced that there is a sufficient record to establish that a problem
exists that should be addressed by commission rules. As I have said previously,
we should not adopt regulations to address anecdotes where there is no fact-based
evidence that persuasively demonstrates the presence of a problem. My concerns
about the need to regulate are heightened in several of the areas that are
covered by the item before us today."
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