Washington — For chairman Jullius
Genachowski, the Federal Communications
Commission’s historic vote on new
network-neutrality rules was a touchdown
pass; for cable and telco operators, it was
the equivalent of dodging a game-ending
tackle; and net neutrality advocates saw it
more as a punt.
In search of a flexible solution in a changing
marketplace for broadband distributors, the
agency proposed a definition of reasonable
network management and an enforcement
mechanism on a case-by-case basis.
But fervent fans of network neutrality — who
wish to ban broadband Internet-service providers
from engaging in discriminatory management
of their networks to the commercial
disadvantage of Web-based content providers
— saw the flexibility as a loophole for carriers
to find creative ways to skirt the rule.
Meanwhile, Republican legislators threatened
to neuter the measure — hearings are
already planned — though immediate legislative
action is unlikely to pass. And court
challenges are expected to emerge.
A YEAR OF BATTLE
The net neutrality vote, which comes after
more than a year of fierce debates and halfstarts,
makes good on a top priority of Genachowski,
as well as a campaign pledge by
Cable operators and telcos will be able to
manage their networks for spam, spyware
and traffic flow; to charge usage-based prices;
and to at least make an argument for charging
more for providing priority to some Internet
traffic, all under a case-by-case FCC enforcement
regime that leaves room for reviewing the
rules for modifications down the line.
While cable and telco ISPs did not
wholeheartedly endorse the decision,
they were grudgingly satisfied with an outcome
that avoided Title II reclassification,
at least for now.
The FCC did not close its docket on reclassification,
and the chairman could endorse
a future “plan B” of the option if the agency’s
current defense, based on Title I of the Communications
Act, does not hold up in court.
Genachowski has said he is confident it will
hold up this time around.
The commission’s 3-2 vote to codify its 2005
Internet-openness guidelines struck such network-
neutrality proponents as Free Press as
nothing short of a giveaway to Internet service
providers. Insufficient network neutrality was
about the highest praise the decision received,
with phrases such as “lost” and “squandered”
opportunity thrown in.
Free Press said the rules “heavily favor the
industry they are intended to regulate, and
leave consumers with minimal protections.”
That’s because the new
rules left the door at
least ajar to paid prioritization
and allow for
new rules do not apply
to wireless Internet
has pushed wireless
broadband as a
big growth sector.
For cable and telco
operators, it will be
pretty much business
as usual for now — even as some network
critics concede there has been little evidence
of anti-competitive practices. The commission
did not concede that point. The FCC said
that characterizing the order as only dealing
with “speculative harms” ignored “actual instances
of harmful practices by broadband
providers,” adding, “In any event, the commission
is not required to stay its hand until
substantial harms already have occurred. “
FCC SETS HIGH BAR
If the multichannel-TV video-delivery model
migrates online, as many predict, any paid
prioritization, either over the public Internet
or through so-called specialized broadband
services, will face a high bar. The new rules
presume that paid prioritization is unreasonable
discrimination, though the industry has
a chance to argue otherwise on a case-by-case
While prioritization of so-called managed
services are not subject to the same presumption
of unreasonable discrimination — which could affect the health-care and emergency
response services the FCC has been touting
— the agency will also monitor attempts to bypass
the rules via that route.
The FCC will have a fast-track complaint
process and will also conduct its own investigations.
Th e commission is even encouraging
the online community to join it as a cop on
the Internet-access beat, creating an “Open Internet
Apps” challenge to encourage privatesector
development of applications to monitor
The “touchdown” element of the vote was
the chairman’s goal of following through on a
proposal introduced over a year ago to codify
the network-neutrality rules and fulfi ll a campaign
pledge by President Obama, a task made
tougher by the U.S. Court of Appeals for the
D.C. Circuit’s decision last April to strike down
the FCC’s handling of Comcast’s management
of traffic from file-sharing application BitTorrent,
a ruling that questioned the agency’s enforcement
authority over Internet access.
“While the commission had in the past pursued
bipartisan enforcement of Open Internet
principles, we have not had properly
adopted rules,” Genachowski said of the decision.
“Now, for the first time, we’ll have enforceable,
high-level rules of the road to preserve
Internet freedom and openness.”
But if past enforcement had been bipartisan
(in the case of the August 2008 FCC vote
that slapped Comcast for blocking BitTorrent,
that meant Republican then-chairman
Kevin Martin teamed with the Democrats),
the Dec. 21 vote was purely along party lines.
Still, not all Democrats were wholly pleased
with the outcome.
It did not go far enough for Democrat Michael
Copps, who had pushed for reclassifying
broadband Internet service as a telecommunications
service under Title II of the Communications
Act, subject to common-carrier rules.
He essentially did not oppose the net neutrality
rules, but his vote to concur was short
of approval. Both Copps and Democrat Mignon
Clyburn had pushed for applying network
neutrality rules to wireless carriers, and
Clyburn also concurred in that part of the decision
rather than approving it.
Republican commissioners slammed the
decision — Robert McDowell said the FCC’s
vote would be overturned in court.
National Association of Telecommunications
Officers and Advisers president Ken Fellman,
an attorney with Kissinger & Fellman in Denver,
agreed, saying it was “debatable” whether
the FCC had achieved the regulatory certainty
it was advertising in the vote, or was “simply
the next move in an ongoing legal battle that will
face more years of court challenges.”
Republican legislators who had warned the
chairman not to proceed with the December
vote weren’t waiting for the wheels of the
legal system to start grinding, though they
likely can’t undo the decision legislatively or
do more than shake their collective fists at the
One consequence of the Dec. 21 vote was a
pledge by House and Senate Republicans to try
to block the implementation of the rules by all
means necessary. The newly minted leadership
of the House Energy & Commerce Committee
and the House Communications Subcommittee
were particularly vocal in their displeasure.
Among those options are defunding the
FCC’s ability to implement them, a Senate resolution
of disapproval or a House equivalent
that essentially nullifies an agency decision.
NEW RULES OF THE ROAD
The FCC adopted these three basic Internet regulations Dec. 21 in a 3-2 party-line vote:
1. Transparency: Fixed and mobile broadband providers must disclose the network management
practices, performance characteristics, and terms and conditions of their broadband services.
2. No blocking: Fixed broadband providers may not block lawful content, applications, services, or
non-harmful devices; mobile broadband providers may not block lawful websites, or block applications
that compete with their voice or video telephony services.
3. No unreasonable discrimination: Fixed broadband providers may not unreasonably discriminate
in transmitting lawful network traffic.
SOURCE: Federal Communications Commission