Net Neutrality Order Reveals FCC's Concern About Legal Challenges

By Wayne Rash  |  Posted 2010-12-27

Net Neutrality Order Reveals FCC's Concern About Legal Challenges

A Federal Communications Commission published report on its network neutrality order shows it was true to its word that it would codify and require open Internet access for all wired Internet providers. The FCC's Report and Order 10-201 also revealed that wireless providers will get slightly looser rules. Finally, the order revealed that the FCC is plenty worried about the legal ground on which this rule stands. 

This is just a sampling of what's in the 194-page report, which was approved Dec. 21 on a 3-2 party line vote. It was released for public inspection and comment in the afternoon of Dec. 23 just as most government and corporate offices were closing for the long Christmas holiday weekend. In addition, all federal courts and Congress are adjourned until January.  

The basic Open Internet requirements are unlikely to get anyone too excited. They prohibit blocking of any legal content, they prohibit any unreasonable discrimination regarding content, and they prohibit carriers from developing alternative services and letting their Internet services languish. The rules also prohibit carriers from doing anything to degrade competing services such as movies, search, voice or video, and they require carriers to provide connections to voice networks for things such as VOIP (voice over IP) without any degradation.  

While Internet providers may engage in reasonable network management practices, they may not use network management as an excuse to block things such as BitTorrent. Mobile providers have it a little easier. They may be a little more aggressive in their choice of how to manage their networks, and they aren't prohibited from restricting what devices may be used on their networks. 

One of the key items that could lead to concern is the repeated statement by the FCC that Internet providers only need to carry legal traffic. While it's hard to object to restricting, say, child pornography, the real problem is figuring out how the Internet provider would know what the content of your data was. Would your ISP inspect every packet to see what you were up to? Would it block sites suspected of having child porn? Would it block every photo of presumptive minors on the chance that they might be porn? 

The FCC's protection of copyrighted material is a similar quagmire, especially considering that copyright rules vary significantly from country to country. Furthermore, copyright start dates are different depending on when the copyright was filed. How would the ISP know what was OK to block, and what was not? For that matter, how would the ISP keep up with when protected works enter the public domain? Would suddenly find itself cut off from the Internet because it distributes some e-books for free after their copyrights run out? 

Report Shows FCC's Preoccupation with Legal Justifications


This is bad enough, but fully one-third of the R&O is consumed with legal justifications as to why the net neutrality Order is OK, even though a very similar practice was overturned by the U.S. District Court for the District of Columbia early in 2010. According to FCC Chairman Julius Genachowski's interpretation, the Communications Act of 1996, Section 706(a) is written to encourage the deployment of "Advanced telecommunications capability, including broadband internet access." The FCC says that such a move is necessary because some carriers are taking actions contrary to the Open Internet requirement, such as blocking some Internet sites that compete with their own offerings.

The FCC also expressly prohibited paid prioritizations, apparently spurred on by previous complaints from AT&T that wanted to engage in such practices. Beyond that, the commission's justification as to why it should be allowed to ignore the DC District Court'sComcast decision descended into minutiae. While the legal arguments did attempt to short circuit complaints by AT&T and Verizon that the Net Neutrality rules were either restrictions on First Amendment speech (AT&T felt that paid priority was a form of protected speech), or unlawful taking under the Fifth Amendment (it wasn't clear what they thought was being taken from whom). 

The larger unspoken question of why the rule was necessary was addressed in the introduction. A number of large ISPs (AT&T and Comcast) had violated the principles of an Open Internet on an egregious basis. The commission said it had to step in because many consumers don't have any effective choice as to their provider and are thus unprotected. However, the commission sort of punted in the case of wireless Internet access-an issue specifically mentioned by Commissioner Mignon Clyburn which prompted her to give only a partial concurrence with the order. 

As Clyburn pointed out, for many poorer people, the mobile Internet is the only Internet. Given the trend to two-year contracts with Draconian contract terms, these people are effectively stuck with whatever company got their business first. Once signed up, they effectively have no choice. 

There is, however, one conspicuously uncertain item about this Report and Order, and that's the fact that its actual effective date is open to question. A legal challenge is a certainty. Right now, advocacy groups are jockeying to see who gets to be the first to sue. Some ISPs or carriers may also sue as well as some industry groups. Even some individuals may sue. These suits may generate stays in the implementation of the Rule. When that happens, the form of the ultimate rule and whether it will ever be implemented is anybody's guess.

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