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."