FCC Draws Line in the Net Neutrality Sand

In what is arguably the end of the beginning of the fights over net neutrality, the Federal Communications Commission (FCC) voted yesterday, 3-2 to establish rules intended to “preserve the Internet as an open network enabling consumer choice, freedom of expression, user control, competition and the freedom to innovate.” Since both court and legislative challenges were anticipated well in advance of yesterday’s vote, and each of the five Commissioners has a different take on the order (their statements are available at the FCC website), the vote is the start of something, rather than the end. Preliminary reactions from the public suggest a division of opinion comparable (but perhaps not identical) to that of the Commission.

The order is explained as part of OpenInternet.gov, but the full text is not currently available. There are three basic rules:

Transparency: Providers of broadband Internet service must publicly disclose information about their network management practices and terms of services to allow consumers to make informed choices and for application/service/content/device providers to develop their products and services for operation on those networks.

No Blocking: Providers of fixed broadband Internet services (this includes cable modems, DSL, and fixed wireless – though there is some confusion in press reports on this last point) cannot block lawful services, applications, content or non-harmful devices, unless subject to reasonable network management. The same is true for applications that might compete with providers’ telephony services (in other words, this should ensure that Voice Over Internet Protocol or Skype services can be used on a Comcast or Verizon network).

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.

The FCC is pointedly exempting mobile networks (primarily cellular telephones) from the last two rules, under the presumption that the infrastructure and/or competitors in this space are not sufficiently mature to allow for completely open network management. This will likely be a point of contention in some circles, but will not likely attract as much attention as the fights over whether the FCC is within its authority to establish these rules, or whether the need for them exists. Those fights should last for years, absent bad behavior from a broadband provider.

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