FCC Net Neutrality Decision Faces Tenuous Existence

By Wayne Rash  |  Posted 2010-12-22

FCC Net Neutrality Decision Faces Tenuous Existence

The 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. 

However, 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 threatened."  

Genachowski 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. 

Genachowski 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 broadband connections. 

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 footing. 

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. 

FCC Net Neutrality Decision Faces Tenuous Existence

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"Today, the Commission is choosing to ignore the recent past as it attempts the same act. In so doing, the FCC is not only defying a court, but it is circumventing the will of a large, bipartisan majority of Congress as well," McDowell said. "More than 300 members have warned the agency against exceeding its legal authority. The FCC is not Congress. We cannot make laws. Legislating is the sole domain of the directly elected representatives of the American people. Yet the majority is determined to ignore the growing chorus of voices emanating from Capitol Hill in what appears to some as an obsessive quest to regulate at all costs." 

McDowell also accused the Commission staff with playing fast and loose with the public comment period requirements. He said that on Dec. 10, two days before the end of the comment period, the Commission dumped 2,000 pages of documents into the public comment file and 1,000 more the next day. He also noted that the final wording of the rule was just released to other commissioners a few minutes before midnight the previous day. He noted that his staff is still wading through it, even though the vote has come and gone. 

But McDowell sees a more clear danger. "Using these new rules as a weapon, politically favored companies will be able to pressure three political appointees [the majority of the FCC's five commissioners] to gain competitive advantage." McDowell said he sees a future of litigation and an ultimately rejection of the FCC's net neutrality rule. 

Commissioner Meredith Attwell Baker said that all of the Commission's efforts are simply going to end up where there were after the court decided against Comcast. "The majority regulates an entire sector of the Internet without any legitimate legal authority to do so," Baker said. "The DC Circuit only months ago rejected our attempt to enforce net neutrality principles.

"The Commission will return to court with the same basic infirmities: no explicit statutory authority to support its action and a legal theory that would give the Commission an unbounded right to adopt any policies it desires to promote its particular vision of the Internet." 

While the rules should go into effect during the holidays, the chances of them having any substantive effect on anyone are slim. There's already a line forming to sue the FCC, and as time goes on you can expect the litigation to get more and more intense. Whether these rules emerge intact is an open question, but given the findings of the court and the statements from members of Congress, it's unlikely.

As we move into January and a Republican majority is seated in the House of Representatives, those chances diminish to virtually zero. This will, of course, inundate the FCC with legal bills. In a way, this net neutrality might best be seen as a Communications Lawyer Full Employment Act. In that way, at least, it should excel. 

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