Controversial FCC net neutrality rules to take effect in November

Rich Fiscus
26 Sep 2011 12:51

New FCC net neutrality rules for US broadband providers are set to go into effect on November 20. The rules were drafted last year, but have been on hold pending an official announcement of adoption by the agency.
In practical terms, there are two rules and an exception which renders their actual effect less than clear. The first rule mandates transparency with regard to network management practices:

Transparency. Fixed and mobile broadband providers must disclose the network management practices, performance characteristics, and terms and conditions of their broadband services

A second provision forbids the blocking of lawful Internet traffic:

No blocking. Fixed broadband providers may not block lawful content, applications, services, or non-harmful devices; mobile broadband providers may not block lawful Web sites, or block applications that compete with their voice or video telephony services

In other words, if an ISP has a policy of prioritizing, or even blocking, traffic based on anything from a subscriber's usage to the protocol being used, they must make that information available to customers.
This does not actually forbid practices like throttling P2P traffic. It merely sets a requirement that such policies be transparent and not anticompetitive.
However, a third rule outlined in the new policy seems to soften the impact of both provisions:

No unreasonable discrimination. Fixed broadband providers may not unreasonably discriminate in transmitting lawful network traffic

The question then becomes what qualifies as "unreasonable discrimination." That's where the political nature of the FCC becomes an issue.
Since FCC Commissioners are political appointees, with chairmanship of the commission determined by the president, enforcement of various rules varies over time, and sometimes even from one company or industry to another.
Many people, particularly those running broadband providers, also question the FCC's authority in regulating network management of ISPs. That authority is being challenged in court already.
Because such challenges had to wait for the FCC to formally announce the adoption of the new rules, the courts have not had a chance to weigh in on the issue yet. In fact, it's entirely possible a federal court could block the rules from taking effect until they reach a decision.
This is exactly what happened with the FCC's Broadcast Flag rule several years ago. In that case, the courts threw out the rule after finding the FCC had overstepped their regulatory authority.
In this case the agency's authority seems to be clearer.
Previously the FCC classified Internet access as merely an information service, rather than a telecommunications service, which limited their power to make rules regarding how providers manage their networks.
Last year the FCC modified their stance, essentially saying they would begin regulating the Internet access component of broadband Internet service separately from the provider specific services bundled with it. Somewhat ironically, in support of their new position, they cite a 2005 Supreme Court decision in which their old classification was upheld.
In National Cable & Telecommunications Association v. Brand X Internet Services, the court ruled the FCC has the authority to decide what level of regulation of broadband Internet service is appropriate.
While the decision was not unanimous, the dissenting opinion actually supports the FCC's current position that the connection component may be regulated as a separate telecommunications service. In fact, it argues the FCC is compelled to do so.
A more serious challenge to FCC authority in the matter is a bill introduced in The House Of Representatives early this year which has the support of at least 82 House members.
It faces an uphill battle right now, given the presidential support implied in the FCC's policy announcement, but depending on the makeup of the House and Senate following next year's elections, that could change. So, too, could FCC policy, based on the winner of the presidential election.