FCC's Net Neutrality Remains on Shaky Legal Footing, Skimpy Industry Support

While Federal Communications Commission Chairman Julius Genachoswski may have intended to clarify the FCC's net neutrality position with the new plan, it ignored or sidestepped some key questions.

The Federal Communications Commission's new net neutrality framework clarified some points from its 2009 plan, but the latest proposal still is receiving scant support in Congress and from Internet service providers.

FCC chairman Julius Genachowski offered a sneak peek at the draft net neutrality proposal on Dec. 1. More details will be available when the FCC discusses the proposal at its next open meeting on Dec. 21.

A few things remain the same from the initial 2009 net neutrality proposal: the FCC is still committed to protecting an "open Internet" and Internet service providers would still be banned from discriminating against specific applications or Websites. The wireless industry is still subject to net neutrality rules.

In his public statement, Genachowski did not satisfactorily address whether or not the FCC can even make these rules. While he said the new framework is "grounded in a variety of provisions of the communications laws," he also said there is no need to "reclassify broadband as a Title II telecommunications service." He said there was "sound legal basis" for the framework.

However, the Washington D.C. appeals court ruled in the spring that the FCC did not currently have legal authority to regulate ISP network management. The case centered on whether the FCC could force Comcast to not block peer-to-peer file-sharing site BitTorrent on its network.

Under current FCC rules, ISPs are classified as Title I "information services" and are, therefore, not subject to FCC regulations involving issues such as rate setting and universal service obligations. The FCC has authority over Title II telecommunications services, which include public utilities, such as telephone companies.

With the appellate decision, the FCC must either wait for Congress to enact net neutrality legislation or reclassify the ISPs. Genachowski initially supported the latter option-and the reclassification is entirely within the FCC's authority-but there was a lot of industry opposition and hints of legal challenges, similar to what happened in the Comcast case.

As for Congressional legislation, the net neutrality bill failed to come to vote before the mid-term elections in November, and it is unlikely to pass in a Republican-controlled House of Representatives. As CNN/Money noted, all 95 House and Senate candidates who'd supported the proposal lost on Election Day.

"I want to emphasize that moving this item to a vote at the Commission is not designed or intended to preclude action by Congress," said Genachowski.