FCC Takes First Step to Formally Regulate the Internet Through Proposed Neutrality Rules

WASHINGTON, October 22, 2009 – The Federal Communications Commission on Thursday approved controversial proposed rules governing internet access during its monthly public meeting. Commissioners on all sides of the debate stressed the importance of having an open internet, and in engaging in constructive dialogue on the issue going forward.

The move marked the beginning of a formal phase of regulating internet access. Although the FCC in August 2005 adopted a policy statement pledging fidelity to four Net neutrality principles, such a policy was never binding upon all broadband providers.

Additionally, the proposed rules go beyond those four generally-accepted neutrality principles.

FCC Chairman Julius Genachowski, a supporter of Net neutrality efforts for some time, noted that the FCC has been addressing open internet questions since 2005.

“[W]e face the dangerous combination of an uncertain legal framework with ongoing as well as emerging challenges to a free and open Internet,” he said.” Given the potentially huge consequences of having the open Internet diminished through inaction, the time is now to move forward with consideration of fair and reasonable rules of the road, rules that would be enforceable and implemented on a case-by-case basis,” he said.

Republican Commissioners Robert McDowell and Meredith Attwell Baker both expressed skepticism about the need for regulation.

During the meeting, Genachowski announced the development of a Technical Advisory Process to be launched by Julie Knapp, chief of the FCC Office of Engineering and Technology, to make sure engineering principles – and not politics – inform answers to technical questions.

Under the proposed draft rules, a broadband service provider would not be allowed to prevent users from “connecting to and using on its network the user’s choice of lawful devices that do not harm the network” or to prevent users from sending or receiving lawful content on the Internet.

The proposed rules also hold that providers cannot prevent users from running lawful applications or services. The agency said it is seeking comment on how it should address internet protocol-based offerings provided over networks used for broadband. Comments on the proposed rules are due on January 14 and reply comments on March 5.

Wireless association CTIA said Thursday that it was pleased the Commission will investigate how the proposed rules should apply to the mobile wireless broadband platform. It also noted that “the imposition of net neutrality rules will degrade the value of unencumbered licenses purchased in the most recent auctions and threaten the integrity of the auction process.”

Barbara Esbin, a senior fellow at The Progress & Freedom Foundation, said she is concerned that “the FCC is poised to take intrusive action into a well-functioning Internet ecosystem without either the demonstrated need or clear legal authority to do so.”

NetCompetition.org Chairman Scott Cleland, a vigorous critic of Net neutrality rules, said in a Thursday statement that “The fundamental unease surrounding this proposed rulemaking is whether new, expanded, and formal FCC regulations could fundamentally transform the long-privatized open internet into a de facto public information commons or morph private broadband companies into de facto public utilities.”

Gigi Sohn, president of Public Knowledge, said, “We are concerned about how the commission addresses the issues surrounding copyright enforcement. In particular, we do not believe copyright holders have the right to demand filtering of everyone’s network traffic, which would violate privacy and free speech rights of everyone online. We are also concerned about the definition and operation of managed services.”

The FCC also received praise from a number of groups, such as the Open Internet Coalition, for its diligent work to preserve Internet freedom.

Meanwhile, two unlikely bedfellows on the open Internet front emerged Wednesday night in a blog entry cross-posted on the public policy websites of Google and Verizon Wireless. The move followed comments delivered by Ivan Seidenberg, CEO of Verizon Communications, that were highly critical of net neutrality proponents.

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