FCC's 'General Conduct' Standard Draws Concern

Complaint Factors Could Include Impact on Free Expression

There was some concern in cable and Internet circles this week that the Federal Communications Commission's seven-factor guidelines for deciding if an Internet service provider practice hurts consumers or edge providers could put the agency in the business of making content calls on free expression on the Internet.

Those factors, among the new proposed network-neutrality rules under a Title II order scheduled to be voted by the FCC Feb. 26, have raised concerns about an online indecency regime or even political litmus tests.

A vague general conduct standard could give the FCC too much leeway to regulate outside of "bright-line" regs--no blocking, no throttling, no paid prioritization--that give the industry some certainty, even if they don't like those constraints.

According to one source, the seven "vague" factors Republican FCC Commissioner Ajit Pai cited, without detailing them, and that FCC Chairman Tom Wheeler is proposing the Enforcement Bureau use in evaluating a complaint against an ISP network practice, could include:  the effect on free expression, the effect on competition, innovation, investment or deployment--all broadband verities Wheeler has espoused--whether the practice is application agnostic, whether the end-user remains in control, whether it is a standard, and what technology is used, mobile or fixed.

The FCC plans to apply those guideliens to interconnection issues, zero-rating plans--where certain applications aren't counted toward bandwidth caps--and anything else that falls outside its bright line rules and draws a complaint. The chairman's office is not commenting on the item or the factors it proposes. But the possibility of that standard being used to judge expression was anticipated in a filing with the FCC last week from a paper by Barbara van Schewick, director of Stanford Law School’s Center for Internet and Society(http://cyberlaw.stanford.edu/downloads/vanSchewick2015AnalysisofProposedNetworkNeutralityRules.pdf).

Van Schewick is all for strong new rules, but prefers bright line rules against specific practices. She also suggests that the FCC could get at conduct that impact free expression by judging conduct's impact on "user choice, application-agnosticism and low-costs of application innovation."

"In the absence of such specific guidance, the standard might be interpreted to require, for instance, a detailed showing of how exactly a specific practice affects application innovation, competition, or free speech..." she wrote. "[A] vague, multi-factor standard gives the FCC ample discretion to decide specific cases and so interfere with competitive markets for websites and services, providing opportunities for FCC overreach."