FCC OKs Neutrality Rulemaking


As expected, the Federal Communications Commission voted last week to launch a rulemaking to expand and codify network-neutrality principles.

In what may be a record for expediency, the FCC had already published the notice just after it voted last Thursday.

All the commissioners agreed it was the beginning of a process that will solicit much comment. FCC chairman Julius Genachowski said the agency would establish a technical advisory process to make sure, as commissioner Meredith Attwell Baker put it, that the process is informed by the laws of physics and not just politics.

“Do any of us think that the draft rules proposed today are perfect? Are they set in stone? No,” Genachowski said. “We are at the beginning of a rulemaking process, with draft rules offered in the context of a notice that seeks to spot the issues, ask the hard questions, and seek broad public input.”

But Genachowski said the goal, without compromise, is to preserve a free and open Internet. It was that open and thorough approach to the goal of an open Internet — a goal all the commissioners share — that drew unanimous approval Thursday.

He said it was a necessary process because past FCC policies had “left the protection of the free and open Internet unnecessarily vulnerable and uncertain.” He cited a combination of factors prompting the need for rules, such as “significant situations” of blocking or degrading lawful services by broadband providers; the fact that the FCC’s existing openness principles failed to address nondiscrimination and transparency; and the understandable economic incentives for providers to favor their own content. Another reason: Un-codified rules have been “attacked” — including in court (most notably by Comcast in the BitTorrent case) — “because they are not rules developed through the kind of notice-and-public-comment process that we should commence today,” the chairman said.

Commissioner Robert McDowell echoed the sentiment that it was the beginning of a process. “No irreversible decisions have been made. We have started a debate in the context of a healthy process.”

But while it may be the beginning of the next step, the chairman made clear that the proposal was not coming out of left field, but after years of comment and inquiry.

“It should come as no surprise that over the past years, the Commission has considered the question of how to safeguard the free and open Internet in more than 10 different proceedings, building a record of over 100,000 pages of comments, submitted by approximately 40,000 companies, organizations and members of the public,” he said.

The vote was unanimous to launch the process, but the commission Republicans dissented on the factual basis undergirding it.

“The notice we adopt today is not only a clarion call for Internet freedom,” said FCC commissioner Michael Copps, “it is also a reasoned and rational way to get there.”

Copps has long pushed for a fifth nondiscrimination principle.

McDowell said a few bad actors do not necessarily argue for new government regulations. “I do not share the majority’s view that the Internet is showing breaks and cracks, nor do I believe that the government is the best tool to fix it. I also disagree with the premise that the Commission has the legal authority to regulate Internet network management as proposed,” he said.

“I dissent in part today because, as a threshold matter, I am not convinced that there is a sufficient record to establish that a problem exists that should be addressed by commission rules,” added Baker, a Republican.