Net Neutrality Order Reveals FCC's Concern About Legal Challenges

News Analysis: The FCC's 194-page Report and Order discloses slightly different neutrality rules for wired and wireless service providers. The newly published rules seem sure to draw multiple 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?

Wayne Rash

Wayne Rash

Wayne Rash is a freelance writer and editor with a 35 year history covering technology. He’s a frequent speaker on business, technology issues and enterprise computing. He covers Washington and...