Tuesday, the Federal Communications Commission voted upon –and passed by a 3-2 margin– the Open Internet Order, the revised net neutrality rules which seek to establish more formal codes of conduct for broadband network operators.
The order has caused a great deal of sturm and drang among consumer advocacy groups, who feared that there would be a shift in power for internet service providers based upon loopholes it opens. The order has raised a great deal of concern from both sides of the political spectrum: from those who believe the FCC oversteps its boundaries by trying to create rules for the Web, and from those who believe the FCC isn’t going far enough to prevent future problems.
As expected, FCC Commissioners Baker and McDowell voted against the Order, while Commissioners Clyburn and Copps and Chairman Genachowski voted in favor of the Order.
“Over 90% of our actions are not only bi-partisan, but unanimous,” Commissioner Robert McDowell said on Tuesday. “We agree that the Internet should remain open and freedom-enhancing…Beyond that, we disagree. The contrast between our perspectives could not be sharper.”
The Order lays down just a few basic rules for fixed broadband services, and a few more for mobile broadband services.
Basic Rules for fixed Broadband
—Transparency: Carriers must clearly express to consumers how their traffic is handled and how charges are derived.
“A person engaged in the provision of broadband Internet access service shall publicly disclose accurate information regarding the network management practices, performance, and commercial terms of its broadband Internet access services sufficient for consumers to make informed choices regarding use of such services and for content, application, service, and device providers to develop, market, and maintain Internet offerings.”
—No Blocking: This refers to services which may compete directly with the network operator, such as VoIP and streaming video.
“A person engaged in the provision of fixed broadband Internet access service, insofar as such person is so engaged, shall not block lawful content, applications, services, or non-harmful devices, subject to reasonable network management.
—No Unreasonable Discrimination: This general rule means paid traffic prioritization will not be allowed, but “reasonable” network management practices are acceptable. What is “reasonable” can be determined on a case by case basis.
“A person engaged in the provision of fixed broadband Internet access service, insofar as such person is so engaged, shall not unreasonably discriminate in transmitting lawful network traffic over a consumer’s broadband Internet access service. Reasonable network management shall not constitute unreasonable discrimination.”
Basic Rules for Mobile Broadband
—Transparency: Like fixed broadband providers, mobile network operators must also be open and transparent about their policies.
—No Blocking: Network owners cannot block access to lawful Websites or applications that compete with voice and video telephony services such as Google Voice. This, however, does not generally apply to providers engaged in the operation of their own app stores.
The problem here arises in the lack of language covering paid prioritization for mobile broadband traffic. Commissioner Clyburn, who believed there should have been some protections against paid mobile prioritization, said “Bear in mind, this does not mean we are not pre-approving any behavior by mobile broadband providers.”
As a part of the Order, the FCC will allow anyone to file both formal and informal complaints that alert the FCC of operator violations. Consumers can submit free informal complaints at fcc.gov, or go through traditional methods to file formal complaints. Based upon these complaints, the FCC can move to initiate investigation into the carrier’s practices, and ultimately block the actions that violate the Open Internet Order. The FCC’s power to preside over the Internet in such a way is supported in the Order by Section 706 of the Telecommunications Act of 1996, and Titles II, III, and IV of the Communications Act.
“In key respects, the interests of edge innovators — the entrepreneurs creating Internet content, services, and applications — broadband providers, and American consumers are aligned,” Chairman Genachowski said on Tuesday. “I believe our action today will foster an ongoing cycle of massive investment, innovation and consumer demand both at the edge and in the core of our broadband networks.”
The Order will not take effect until next year, and it could face opposition from Congress or the Judicial branch. As Commissioner McDowell was almost proud to point out, “The FCC’s last net neutrality order was met with a spectacular failure in the appellate court.”