FCC Issues Open Internet Rules

WASHINGTON, December 22, 2010 – In an uncommon split vote on Tuesday, the FCC handed down an order requiring network providers to abide by certain rules intended to maintain network neutrality.

The order provided three guidelines by which internet service providers must abide in their offerings to consumers.  First, the commission said, ISPs must provide services in a transparent manner by disclosing their network management practices and performance characteristics.  Second, network providers must not block lawful content from their customers, and third, providers may not unreasonably discriminate by prioritizing certain network traffic without sufficient reason.

Though each commissioner was quick to point out that the overwhelming majority of actions by the FCC enjoy not only bipartisan, but unanimous support, the neutrality order vote fell along party lines, with the Democratic appointees voting in favor and the Republican appointees voting against.  Even among the Democratic appointees, approval of the measure belied the ideological rift between the order as passed and what Commissioners Michael Copps and Mignon Clyburn stated they would have preferred.

Speaking first, Commissioner Copps harkened to the days of the Bell monopolies and AT&T dominance as cautionary tales of what might happen without sufficient protections.

“Today’s action could have – and should have – gone further,” said Copps, adding that he “seriously considered” issuing an order-killing dissent.  “But without action today, progress would have ground to a halt for at least the next two years. In the end, I believe we made progress – not as much as I had hoped, but more than some people expected.”

Echoing many of Copps’ concerns, Clyburn expressed that the order simply did not go far enough.  She advocated strengthening several portions of the order, such as an outright ban on “pay-for-priority access,” wherein content providers make pay ISPs to ensure their content is delivered to consumers more quickly than the content of their competitors.

The Republican appointees, Commissioners Robert McDowell and Meredith Baker, voted against the measure, calling it “unnecessary” to maintain the openness of the internet, questioning its legal basis and condemning it as political maneuvering.

Invoking the DC Circuit Court’s decision in the Comcast case earlier this year, Commissioner McDowell accused the Commission of improperly usurping Congress’ legislative powers.  In that case, the court rejected the FCC’s attempt to enforce network neutrality principles on the cable internet provider, saying Congress had not granted sufficient authority for the FCC to do so.

“The [FCC] is angering Congress by ignoring increasing calls for a cessation of its actions and choosing, instead to move ahead just as Members leave town,” said McDowell.  “As a result, the FCC has provocatively charted a collision course with the legislative branch.”

Commissioner Baker added to her colleague’s statements, saying regulation was wholly unnecessary and that “the commission regulates the internet because it wants to, not because it needs to.” She also echoed the sentiment that the order stood on a tenuous legal basis and was likely to be overturned in the courts.

In his statements, Chairman Julius Genachowski stressed that the order represents a compromise between ideological extremes.  Acknowledging the contentiousness that sometimes marked the clashes, he called the debate one “which has often produced more heat than light.”

“Although the Internet and the Web generally thrive on lack of regulation,” said the Chairman, “some basic values have to be legally preserved.”

In a debate that has drawn lines between interests that would otherwise likely align, the neutrality debate pits content providers on one side against network providers on the other.  Tellingly, industry responses were as disparate as the Commissioners’ opinions.

In a statement, Dean Garfield, the CEO of the Information Technology Industry Council, which includes companies such as Microsoft and Google, acknowledged the divisiveness of the net neutrality debate. ITI and its members were “pleased that the FCC has chosen to adopt a net neutrality rule,” said Garfield’s statement.  “No outcome will please everyone interested in this debate, but progress must trump stalemate.”

Apple co-founder Steve Wozniak also attended the open meeting, holding an impromptu press conference afterward among a small crowd of reporters.  Wozniak indicated that he saw instances of networks violating net neutrality principles in his personal life “everyday.”

Meanwhile, the National Cable Television Association and CTIA The Wireless Association lined up behind the dissenting commissioners, calling the order “unnecessary,” while acknowledging that it could have gone further than it did.

“We would like to commend Chairman Genachowski and his staff for working in good faith toward a workable compromise on this set of issues,” said NCTA CEO Kyle McSlarrow in a statement.  “[T]his would not be the Order we would have written, [but] we do appreciate the attempt to provide certainty and to balance the openness of the Internet with the preservation of an incredibly dynamic and successful marketplace.”