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FCC Votes to Approve Net Neutrality Rules

Jeff Baumgartner
12/21/2010
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As expected, the Federal Communications Commission (FCC) 's proposed network neutrality rules were approved via a close 3-2 vote as the two Republican members of the Commission dissented on the grounds that the FCC does not have the power to make laws and that today's item is likely to be challenged in court. (See Network Neutrality Rules Poised to Pass.) C-SPAN Streaming

Because of the dissenting views, the FCC is not expected to release the full order until later this week. However, the rules will ban mobile and fixed broadband service providers (SPs) from blocking and discriminating against legal content and applications. There's also a transparency provision that calls for SPs to explain how they are managing their networks. Likewise, the FCC rules will allow them to use "reasonable network management."

The order does not give the green light to paid Internet fast lanes (for an MSO's own Web TV offerings, for example), but there's no provision in there that would prevent mobile SPs from blocking some applications offered through app stores. But under the rules, mobile SPs still must allow access to competitive voice applications.

The FCC plans to enforce these rules case by case, and will use its so-called "Rocket Docket" to help expedite the resolutions of consumer complaints.

Boiled down, the rules codify and broaden the FCC's Internet Policy Statement, which was issued in 2005.

Commissioner dissent
The two Republican members of the Commission -- Robert McDowell and Meredith Attwell Baker -- dissented, believing that today's order will fail as spectacularly as the FCC's previous order pertaining to Comcast Corp. (Nasdaq: CMCSA, CMCSK)'s throttling of some upstream peer-to-peer traffic did. (See Net Neutrality Ruling: FCC Loses, Comcast Wins.)

FCC Commissioner Robert McDowell wrote that he "strongly disagree[s] with this order" in part because he believes the Commission is overstepping its authority by voting for this order.

"The FCC is not Congress; we cannot make laws," he said, noting that today's vote sends the FCC "on a collision course with the legislative branch… The courts will easily sink it."

Rather than serving as a "cop on the beat... the FCC looks more like a regulatory vigilante," he added, also fearful that the rules could cause "irreparable harm" because the existing structure provides, in his view, ample consumer protection against a "systematic market failure."

Baker agreed that the FCC doesn't have the authority for these rules, believing that the "Commission intervenes to regulate the Internet because it wants to, not because it needs to." She later cited President Obama's campaign promises as the "only reason" why the rules were being pushed through.

Conjuring up images of the reign of former FCC chairman Kevin Martin, Baker and McDowell were critical of the lack of transparency of the process applied to this particular item, both complaining that they did not get to review a final draft, which included important changes, until late last night. Baker called that "inexcusable."

The two Democratic commissioners -- Michael J. Copps and Mignon Clyburn -- voted in favor of the item, but both had reservations.

Copps, who considered voting against the rules, believes the ones voted in today are too weak, and was hopeful for a more general ban on paid Internet priority so a "slower, second-class Internet" could be avoided. He also wanted more parity between the rules governing mobile and fixed Internet. "The Internet is the Internet, no matter how you access it," he said.

But, in the end, he was fearful that not adopting the rules would cause the wheels of network neutrality to screech to a halt for years. "It's a first step in the right direction," he said.

Clyburn also wanted stronger rules, citing studies showing that US minorities rely on mobile Internet access more than other socioeconomic groups. If she had her druthers, she would have also prohibited all paid priority arrangements for access to Internet-sourced content.

FCC chairman Julius Genachowski, meanwhile, called this a "strong and balanced order," but did not address in his prepared comments concerns that the rules could be challenged in court. However, Cecilia Kang of The Washington Post noted that the chairman believes the rules are built on a legal foundation strong enough to win court challenges, making it unlikely that he'll pursue stronger Title II (common carrier) authority over broadband. (See Title II's Nuclear Fallout and Policy Watch: Will the FCC Declare War? .)

Genachowski instead focused on arguments from entrepreneurs, venture capital firms, and companies that make Internet products, holding that the Internet sector is at risk without some FCC-established rules of the road.

He also said the rules will have a "deterrent effect on bad conduct" and that the process, despite Baker's and McDowell's protests, was "the most transparent in the FCC's history."

— Jeff Baumgartner, Site Editor, Light Reading Cable

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