Policy

Summer Bummer on Neutrality

1/31/2011 12:01 AM Eastern

Washington — Cable
operators and telephone and
satellite companies have fretted
about the Federal Communications
Commission’s
network-neutrality rules getting
caught up in the courts,
due to lawsuits filed by telco
Verizon Communications
and cell-phone provider MetroPCS.

But the cable industry won’t face new
network-neutrality regulations until June or
perhaps later — no matter what happens in
court before then — and even if, as expected,
a separate assault on them by congressional
Republicans fails.

The FCC sent a copy of its new networkneutrality
regulations to Congress on Jan. 14,
according to an agency source. That triggers
a 60-day clock on a legislative effort to block
the rules — a pledge made by top House Republicans.

Of course, while the GOP-controlled
House may pass a resolution of disapproval
essentially nullifying the FCC action, that
measure is unlikely to pass muster with
a Democratic Senate or the White House,
both of which back the Dec. 21 FCC vote to
approve net-neutrality regulations.

The FCC has said the rules will become
effective 60 days after they are cleared by the
Office of Management and
Budget, which under the Paperwork
Reduction Act must
first make sure any new regulations
do not unduly increase
paperwork requirements before
they are allowed to take
effect.

But before the FCC can
even submit them to the
OMB, it must solicit public
comment on the portion of the new regulations
that trigger the Paperwork Reduction
Act review — specifically, the transparency
requirement that Internet-service providers
disclose their network-management practices
and types of service.

The FCC request for comment must also first
be published in the Federal Register before it
becomes official. The agency has not yet done
that, but a source said it will in the next week
or so.

After that publication, the FCC will collect
comments for 60 days, said the source, review
the comments, and only then submit it to the
OMB.

As a result, the soonest the rules could be approved
is within 120 days, plus however long it
takes before their initial publication in the Federal
Register
; however long it takes the FCC to review
the comments; and however long it takes
the OMB to review it and approve them.

The FCC is expected to submit the rules to
the Federal Register any day now, with publication
usually coming a week after that. Once
they are published, anyone who wants to challenge
them in court has to do so within 60 days,
and within 10 if they want to try to select which
U.S. Circuit Court will take the case.

The FCC on Jan. 13 released guidelines essentially
instructing those who want to challenge
its rules outside of the D.C. Circuit on
how to do so.

An appeal can also be made directly to the
FCC, but that must come within 30 days of publication
in the Register.

Verizon and MetroPCS didn’t have to wait
because they were challenging the rules as a
modification of their FCC licenses, rather than
as new regulations.

“We are working through the process to implement
a framework that preserves the Internet
as a platform for innovation, investment
and job creation,” said an FCC spokesman.
“Last month’s order has already given consumers,
providers and innovators greater certainty,
and we expect to submit the item to the Federal
Register
under our normal processes in the
near future.”

March