As expected, the Federal Communications Commission adopted the net neutrality regulations in a 3-2 vote at its meeting on Dec. 21. However, it’s clear that even amongst the majority, the commissioners were not satisfied with the rules.
The voting followed party lines, with the three Democratic commissioners voting for, and the two Republican commissioners voting against. Robert McDowell, the vocal critic of the proposal, said he was “disappointed,” noting that generally “90 percent of the FCC’s actions are unanimous and bipartisan.”
The order, scheduled to go into effect early next year, gives the federal government formal authority, through the FCC, to regulate Internet traffic, although it is by no means a “final decision,” Mike Manzo, chief marketing officer of wireless supplier OpenNet told eWEEK. There is substantial opposition, and either Congress or the courts might overrule the regulations, he said. In fact, hours before the vote, there were reports that Verizon will consider a lawsuit protesting the orders.
Senator Mitch McConnell, a Republican from Kentucky, said lawmakers would “have an opportunity in the new Congress to push back against new rules and regulations.”
The order addressed three major issues: transparency, blocking, and discrimination. Fixed-line broadband providers such as Comcast and Qwest will be required to give subscribers information on Internet speeds and service. They are also prohibited from blocking access to sites and applications that can compete against its own products. However, there is clause allowing “reasonable” network management to enable providers to restrict access to sites that could be deemed “harmful.”
McDowell noted that “reasonable” has many different definitions.
On forums and chat rooms online, viewers following the FCC open meeting wondered whether access to Wikileaks could be legally restricted under this rule.
The rules “do not guarantee anyone’s right to an open Internet or ban paid prioritization” by ISPs, said the Computer and Communications Industry Association, a group that supported the much stronger net neutrality proposal from earlier this year. Even though there was no outright ban, the order contained language discouraging phone and cable companies from offering faster, priority delivery services to Internet companies willing to pay extra.
FCC member Michael Copps would have preferred a flat-out ban on paid prioritization. “I had hoped we would move full throttle,” Copps said, referring to some of the watered down elements of the net neutrality rules. He’d seriously considered voting against the measure but decided that if he did, “the wheels of net neutrality would grind to a screeching halt for at least the next two years.”
Exclusion for Wireless Carriers
The exclusion for wireless providers, first announced in a draft proposal earlier this month, remained in the final version of the order. The exclusion will create “barriers to new start-up content providers and chill content innovation over wireless Internet,” said J. Scott Holladay, an economics fellow at the Institute of Policy Integrity at New York University School of Law.
Commissioner Mignon Clyburn also voted yes, despite being unhappy about the different set of rules for wireless providers. All the rules should have been extended to the wireless industry, given that there are those who rely solely on mobile devices for access to the Internet, she said.
The orders against blocking Web sites apply to both wireless and wired providers, but wireless providers have the discretion to be able to block certain applications that take up too much bandwidth. However, the rules specifically forbid mobile companies from blocking competing mobile voice or video-conferencing applications.
The other dissenting Republican commissioner, Meredith Attwell Baker, said there was no need for these rules. She said there was already a competitive broadband marketplace that made government regulation of any kind unnecessary. McDowell also touted the healthy competition between broadband providers.
An informal poll online indicated that most users have access to only one broadband provider in their area. Only a few could choose between two (or more) providers. One user asked on a chat hosted by the Media Access Project: “Where is this competitive broadband marketplace? Can I move there?”
McDowell and Baker both pointed out in their statements that the FCC does not have any legal powers to regulate the Internet. “The FCC is not Congress; we cannot make laws,” McDowell said.
Copps also wanted to assert Title II-level authority over the Internet, giving the FCC even more authority to regulate the big gatekeepers such as Comcast, Time Warner and Verizon. He noted that Title II classification remained an open item under the final orders.
The FCC based the rules on “shaky ground,” invoking “legal authority that was called into serious doubt” by the courts in the Comcast case this spring, making the “long-term prospects” for the new rules quite poor, said Holladay.
The orders closely follow the proposal set out by Verizon and Google earlier this year, said Manzo. Net neutrality supporters were incensed that the rules considered the needs of the industry ahead of the consumers. Instead of “real Net Neutrality,” the adopted orders were “industry-written rules,” according to a statement from the Media Access Project.