Last month, the FCC did what it has been threatening (warning, suggesting, recommending, signaling – you choose the synonym that best describes your feelings about the FCC) to do for some time: issue an order on Net Neutrality.
This order was the FCC’s first attempt to regulate the Internet, an attempt seen by some as a dangerous intrusion by the Federal Government into what has been, heretofore, the Nirvana of open communication.
The FCC acted, according to its official press release, “to preserve the Internet as an open network enabling consumer choice, freedom of expression, user control, competition and the freedom to innovate.”
So what rules did the FCC order?
Rule 1: Transparency. Providers of broadband Internet access must publicly disclose information about their network management practices, performance, and terms of service.
Rule 2: No Blocking. Providers of fixed broadband Internet services cannot block lawful services, applications, content or non-harmful devices, subject to reasonable network management.
Rule 3: No Unreasonable Discrimination. Providers of fixed broadband services cannot unreasonably discriminate in transmitting lawful network traffic to consumers. Reasonable network management does not constitute unreasonable discrimination.
Sounds good, right? Hold on, there are notable exceptions and caveats. First of all, mobile networks are exempt from the Rules 2 and 3. Second, the “legitimate network management” exemption allows service providers to reduce or mitigate the effects of congestion on the network. That means carriers would be able to limit all sorts of Internet activity, for example: how many Netflix movies you can stream to your house; how many applications you can aim at your customers; the responsiveness and speed of cloud-based applications; the amount of interoffice video you can run.
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Furthermore, opponents insist that the FCC is trying to address a problem that doesn’t even exist. Internet providers have never blocked applications or charged special fees for open access.
The rules were adopted on a 3-2 partisan vote, with the agency’s three Democrats backing passage and the two Republican commissioners strongly opposed, insisting that the FCC has no jurisdiction over the Internet.
The cause has already been taken up by Republican Congresswoman Marsha Blackburn (TN), who introduced the Internet Freedom Act (H.R. 96) on January 5. The bill was co-sponsored by 62 representatives, including the majority of Republican members on the House Energy and Commerce Committee.
The spare, two-page bill states that Internet regulation is the sole prerogative of Congress. In a recent press release, Blackburn stated, “The FCC’s Christmas week Internet grab points out how important it is that we pass this bill quickly. The only sector of our economy showing growth is online. In these times, for an unelected bureaucracy with dubious jurisdiction and misplaced motives to unilaterally regulate that growth is intolerable. The Internet is more than a communications platform with modems, fiber, and e-mail. It is a marketplace; one that should be kept free.”
Court battles may also be in the works. Last year, the D.C. Circuit Court of Appeals, which has jurisdiction over the FCC, ruled that Congress had not given the FCC authority over the traffic management practices of Internet providers. The FCC hopes to avoid similar rulings by arguing that its jurisdiction over the Internet falls under its general telephone jurisdiction.
For a full text of the FCC order, go to: http://www.fcc.gov/Daily_Releases/Daily_Business/2010/db1223/FCC-10-201A1.pdf.
To see the full text of The Internet Freedom Act, go to: http://thomas.loc.gov/cgi-bin/query/z?c112:H.R.96:.