FCC Takes Defensive Legal Stance in 300-Page Open Internet Order

By Wayne Rash  |  Posted 2015-03-14 Print this article Print
FCC Neutrality Order

"Regardless of how far the FCC pushes its future authority, the immediate uncertainty created by this plan will produce a slowdown in capital investment," Belcher added. "Consumers and small businesses, who have benefited enormously from the existing regulatory landscape, will bear the burden of a less robust network. TIA is committed to working with Congress to achieve a bipartisan alternative that clarifies the FCC’s legal authority and assures a light-touch approach to net neutrality."

Belcher's criticism of the FCC's order is likely the weak point in the rules as they are currently written. The problem is that when the FCC decides to practice forbearance, meaning that the agency won't enforce certain provisions of the law, such as rate regulation, there's nothing to stop the FCC in the future from changing its mind.

During a media briefing after the commission released the order on March 12, which unfortunately was on background, FCC officials repeatedly dodged questions about whether its promise of forbearance could be changed or eliminated in the future.

In other words, the FCC's promise as to how it will administer the Internet is just a promise. There is no legal basis to enforce a promise of forbearance. A senior official for the FCC said that the agency is trying to make it clear that the Title II approach is the best way to approach net neutrality and that as time goes on it will be clear to future members of the FCC that they shouldn't change things.

However, despite what the FCC is calling clear direction, the order as its currently written includes a host of things that a senior official said won't be affected. Some of those are what the FCC calls special services, including things like services for e-readers and heart rate monitors.

However those specialized services could also allow parallel network delivery of things like movies or gaming. In addition, the same official said that existing agreements that are already in place will not need to be change. Whether that includes existing paid prioritization agreements wasn't clear.

Also not clear is whether the order would regulate activities by some carriers that include throttling bandwidth to customers who have unlimited data plans and use a lot of data. Answers by FCC officials said that the rules wouldn't interfere with network management, but also said that business decisions that allow throttling wouldn't be permitted.

So for better or worse, the FCC's net neutrality order is in place, and will take effect 60 days after it's published in the Federal Register, except for those provisions that are delayed by legal challenges, FCC forbearance or other regulatory issues, those same unnamed officials said.

The rules that the FCC had said are designed to inject certainty into the regulation of the Internet seem to have resulted in far more uncertainty than had existed before.


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