In expectation of what undoubtedly will be a lengthy and expensive series of court battles over administrative control of access to the Internet, the Federal Communications Commission on March 12 reinforced its position that the Internet—whether wired or wireless—should be considered a public utility.
In doing this, it released for the first time a 400-page document that includes a detailed set of rules aimed at countering as many potential legal challenges as it can now envision.
Significantly, the wireless mobile Internet is now included in the net neutrality rules, where no regulations of this sort previously had existed.
By a 3-2 vote on Feb. 26, the commission approved the sweeping set of net neutrality rules, creating for itself new powers that enable the agency to regulate the Internet as a public utility. If the Internet eventually becomes classified as such, the commission believes it will be better fortified to protect the free flow of online data against business interests that want to regulate the ebb and flow of data for profit purposes.
‘Clear and enforceable rules’ handed down
FCC officials released the final text of what they termed “the clear and enforceable rules to preserve and protect the open Internet” that were adopted at the Feb. 26 meeting. The commission claimed the rules are the strongest ever adopted; they ban data blocking, data throttling, and paid prioritization, and, for the first time, mobile broadband is in the mix.
Cable and mobile Internet providers, including AT&T, Verizon, T-Mobile, Sprint and others have protested these rules, claiming that they kill a fundamental part of their businesses and infringe upon their own cable —and now mobile—bandwidth capacities.
Cable providers charge premium rates for so-called “Internet fast lanes” to content producers who use high percentages of their cable capacity; Netflix, Amazon, Hulu, and YouTube, with their heavy loads of video streaming, are among the most well known of those producers.
Paid prioritization is a subversion of net neutrality because it allows Internet service providers to discriminate among Websites’ data, the FCC claimed.
The Federal Trade Commission agrees. In January, it filed a lawsuit against AT&T to stop the cell service provider from throttling download speeds for its customers who still have unlimited wireless data plans. AT&T argues that the FTC has no jurisdiction over its wireless data services, and as such isn’t in a position to stop it from throttling download speeds for customers it thinks are using too much of its unlimited data.
FCC Adds Mobile Broadband to Net Neutrality Rules, Prepares for Litigation
‘Throttling’ has been used for years
AT&T has been documented to slow down data streams after a user has consumed 5Gb of a data plan, for one example. In fact, the practice has been utilized for years.
AT&T offered wireless data plans without any caps to help draw customers to Apple’s first iPhone. Over time, the company started using tactics to push customers into contracts that offered a limited amount of data each month, and the FTC says that amounts to deceptive business practices.
The FCC agrees and says it will work closely with the FTC “for the public good,” an FCC legal spokesman said.
“These new rules are built to be sustained in court,” the FCC’s legal counsel told journalists on a conference call announcing the release of the full set of rules. It is widely believed that the litigation over net neutrality eventually will conclude in the Supreme Court of the United States.
The FCC defines the open Internet, or net neutrality, as the following:
“An Open Internet [net neutrality] means consumers can go where they want, when they want … It means innovators can develop products and services without asking for permission. It means consumers will demand more and better broadband as they enjoy new lawful Internet services, applications and content, and broadband providers cannot block, throttle, or create special ‘fast lanes’ for that content. The FCC’s Open Internet rules protect and maintain open, uninhibited access to legal online content without broadband Internet access providers being allowed to block, impair, or establish fast/slow lanes to lawful content.”
Opponents claim FCC is out of line
Opponents of the new rules claim that the FCC is illegally rewriting Title II of the Communications Act of 1996.
“This order represents the triumph of political forces over sound policymaking,” said Berin Szoka, president of TechFreedom, a non-profit, non-partisan technology policy think tank. “It effectively destroys nearly 18 years of bipartisan consensus. It’s a radical break, even from the FCC’s proposed rules.”
“Essentially, the FCC is saying, ‘Just trust us,'” said Geoffrey Manne, Executive Director of the International Center for Law and Economics, a non-profit, non-partisan research center aimed at rigorous policy analysis and evidence-based regulation.
“But the order is brimming with reasons not to. Perhaps the order’s most astonishing admission is that the FCC intends to use its newly asserted authority under Title II not only to ensure, as it claims throughout in the order, the ability to protect an open Internet, but also to saddle broadband providers and other services with whatever other regulations in Title II the FCC deems appropriate.”
Congressman decries ‘massive layer of regulation’
“As a member of Congress and a businessman for over 30 years, I strongly oppose FCC Chairman Tom Wheeler’s unprecedented plan to reclassify the Internet as a public utility,” Rep. Vern Buchanan (R-Fla.) wrote on the Fox News web site. “A massive layer of government regulation not only threatens the online freedoms enjoyed by Americans across the country but stifles the innovation and entrepreneurship that is the lifeblood of the digital economy.
“The Internet’s rapid proliferation is the result of exceptional American innovation, free of government intrusion. Government regulation of the Internet is all too common in countries like China, Iran and North Korea. That is not a model for America.
“The Internet is working just fine – it has been for the nearly two decades since its inception. As the saying goes – “if it ain’t broke, don’t fix it,” Buchanan wrote.
Here are the FCC’s so-called “Bright Line Rules” in the March 12 order:
—No blocking: Broadband providers may not block access to legal content, applications, services, or non-harmful devices.
—No throttling: Broadband providers may not impair or degrade lawful Internet traffic on the basis of content, applications, services, or non-harmful devices.
—No paid prioritization: Broadband providers may not favor some lawful Internet traffic over other lawful traffic in exchange for consideration of any kind—in other words, no “fast lanes.” This rule also bans ISPs from prioritizing content and services of their affiliates.
The rules will not apply to “specialized Internet services,” the FCC said. These include use cases such as dedicated heart monitors, automobile telematics, and other connected devices that do not connect a broad set of users of the Internet.
The FCC did say, should complaints be brought to them about such specialized services, that it would consider the merits of each on a case-by-case basis.
eWEEK’s Wayne Rash and Todd Weiss assisted in the preparation for this report.