FCC Approves Net Neutrality But With Concessions

As expected, the US Federal Communications Commission (FCC) adopted the net neutrality regulations in a 3-2 vote at its meeting on December 21. However, it is clear that even amongst the majority, the commissioners were not satisfied with the rules.

The voting followed party lines, with the three Democratic commissioners voting for, and the two Republican commissioners voting against. Robert McDowell, the vocal critic of the proposal, said he was “disappointed”, noting that generally “90 percent of the FCC’s actions are unanimous and bipartisan”.

Appeal May Delay Implementation

The order, scheduled to go into effect early next year, gives the federal government formal authority, through the FCC, to regulate Internet traffic, although it is by no means a “final decision”, Mike Manzo, chief marketing officer of wireless supplier OpenNet told eWEEK. There is substantial opposition, and either Congress or the courts may overrule the regulations, he said. In fact, hours before the vote, there were reports that Verizon will consider a lawsuit protesting the orders.

Senator Mitch McConnell, a Republican from Kentucky, said lawmakers would “have an opportunity in the new Congress to push back against new rules and regulations.”

The order addressed three major issues: transparency, blocking, and discrimination. Fixed-line broadband providers like Comcast and Qwest will be required to give subscribers information on Internet speeds and service. They are also prohibited from blocking access to sites and applications that may compete against its own products. However, there is clause allowing “reasonable” network management to enable providers to restrict access to sites that may be “harmful”.

McDowell noted that “reasonable” has many different definitions.

On forums and chat rooms online, viewers following the FCC open meeting wondered whether access to WikiLeaks could be legally restricted under this rule.

The rules “do not guarantee anyone’s right to an open Internet or ban paid prioritisation” by ISPs, said the Computer and Communications Industry Association, a group that supported the much stronger net neutrality proposal from earlier this year. Even though there was no outright ban, the order contained language discouraging phone and cable companies from offering faster, priority delivery services to Internet companies willing to pay extra.

FCC member Michael Copps would have preferred a flat-out ban on paid prioritisation. “I had hoped we would move full throttle,” Copps said, referring to some of the watered down elements of the net neutrality rules. He had seriously considered voting against the measure but decided that if he did, “the wheels of net neutrality would grind to a screeching halt for at least the next two years”.

The exclusion for wireless providers, first announced in a draft proposal earlier this month, remained in the final version of the order. The exclusion will create “barriers to new start-up content providers and chill content innovation over wireless Internet,” said J Scott Holladay, an economics fellow at the Institute of Policy Integrity at New York University School of Law.

Commissioner Mignon Clyburn also voted yes despite being unhappy about the different set of rules for wireless providers. All the rules should have been extended to the wireless industry, given that there are those who rely solely on mobile devices for access to the Internet, she said.

The orders against blocking Web sites apply on both wireless and wired providers, but wireless providers have the discretion to be able to block certain applications that take up too much bandwidth. However, the rules specifically forbade mobile companies from blocking competing mobile voice or video-conferencing applications.

Mobile Carriers Make Plans

In a leaked presentation, two companies that sell their services to cellular carriers showed off a wireless product that demonstrates how the mobile Web may vary from the core FCC net neutrality rules.

In the PowerPoint presentation, available on Wired, Allot Communications and Openet proposed a tiered, fee-based access to Web services. Under this model, carriers can monitor users’ online activity and charge extra for using certain applications, such as YouTube and Skype.

Customer usage would be monitored using “methods like heuristic analysis, behavioural and historical analysis, deep packed inspection, and a number of other techniques”, according to the presentation.

“It certainly is exactly the thing we have been warning the companies will do if they have the opportunity and explains why AT&T and Verizon are so insistent that the wireless rules be solely about blocking and not anything else,” Public Knowledge legal director Harold Feld told Wired. “If you want the slide deck to show why we need the same rules for wireless and wireline, this is it.”