FCC Net Neutrality Order Strengthened, Poised for Passage

Senior commission officials describe provisions added to ensure majority support for controversial order stipulating open Internet requirements. Advocates say it's not enough.
Posted December 20, 2010

Kenneth Corbin

The net neutrality rules the Federal Communications Commission appears poised to approve tomorrow morning will go farther than originally expected to prevent Internet service providers from playing favorites with the content traveling on their data networks, according to two senior FCC officials.

Speaking with reporters on the eve of the vote, the officials said that Chairman Julius Genachowski and his staff have been working with fellow Democratic Commissioners Michael Copps and Mignon Clyburn to strengthen the rules and secure their support. Copps and Clyburn had expressed concern that the final order would not go far enough, but both are now apparently planning to vote in the affirmative tomorrow, giving Genachowski the three-person majority needed to win approval of the order.

Specifically, the officials said that the order will not leave the door open to paid prioritization agreements between content and service providers, but rather will include specific language cautioning against such arrangements, and require service providers to demonstrate that they meet baseline criteria in a new nondiscrimination rule. Net neutrality advocates have long expressed the concern that service providers, if left unchecked, will enter into fee-based agreements with content and application providers to speed delivery of their traffic while slowing down other transmissions.

The legislative draft upon which the FCC's net neutrality proposal is based, developed earlier this year by Rep. Henry Waxman (D-Calif.) but ultimately abandoned after House Republicans withdrew support, did not include language deterring paid prioritization agreements, a concession to phone and cable companies.

The final order will also attempt to close a loophole advocates had warned about concerning the definition of broadband Internet access service, tightening the language to ensure that the rules will apply broadly to all ISPs that deliver high-speed service to consumers and businesses.

The officials said that the final order would not be made public tomorrow, but rather over the next few days to allow time for the chairman's office to respond to the expected dissents from the two Republican commissioners, Robert McDowell and Meredith Baker, who have both blasted any form of net neutrality rules as unnecessary and a threat to innovation and investment in the expansion of network infrastructure.

While Genachowski's staff has worked with Copps and Clyburn to strengthen the rules in the order, many net neutrality advocates will still be left wanting more. Wireless providers, for instance, will be exempt from the rigorous nondiscrimination requirements to be imposed on fixed-network operators. Wireless operators will be subject to a basic no-blocking rule, prohibiting them from restricting access to specific websites or services and applications that might compete with their core offering, such as voice-over-Internet-protocol (VoIP) services. But the order will give wireless providers significantly more flexibility to manage traffic on their networks, owing to their comparatively scarce capacity, while advocacy groups such as Public Knowledge have been pressing for the commission to impose equal nondiscrimination rules on all service providers.

"The actions by the Federal Communications Commission fall far short of what they could have been," Public Knowledge President Gigi Sohn said in a statement as details of the final order began to surface. "Under the rules the chairman will bring to a vote tomorrow, those who go online with a wireless device will be at the mercy of the big telephone companies to practice whatever mischief they wish to get around the bare-bone approach the commission took."

The order will also establish transparency requirements for wired and wireless providers that will require them to provide disclosures to both consumers and service and content providers about how they manage their networks.

The blocking and nondiscrimination rules will be subject to what the order will define as "reasonable network management," an operative term that figures to play a pivotal role in the commission's evaluation of complaints under the new framework.

The FCC officials said that the commission will be able to punish companies found to be in violation of the rules by seeking injunctive relief to curb the objectionable practices, or, potentially, monetary penalties. They said that the commission has an expedited complaint process that it will use to handle potential violations of the open Internet rules.

The FCC's legal status in the area remains an unsettled question. In April, a federal appeals court ruled that the FCC lacked the statutory authority to enforce a preexisting set of open Internet principles punishing Comcast for secretly slowing traffic on its network, an opinion that left the commission in limbo. Genachowski initially proposed reclassifying broadband service to a different designation under communications law, but backed away from that idea after vigorous opposition from phone and cable companies, as well as a majority of lawmakers who felt such a move should be undertaken only as an act of Congress.

Instead, under the order poised to be approved tomorrow, the FCC's legal team is betting that the voluminous record of filings it has been collecting on the proceeding for more than a year will be enough to convince a court that there is a sufficient connection between the mandate in the agency's charter statute and the open Internet rulemaking.

Kenneth Corbin is an associate editor at InternetNews.com, the news service of Internet.com, the network for technology professionals.

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