WASHINGTON, D.C.—In a 3-2 vote down party lines, the Federal Communications Commission (FCC) today approved the Open Internet Order, otherwise known as the new net neutrality regulations. The no votes were by the two Republican commissioners, who essentially believe that the FCC did not have the authority to promulgate the order. The other commissioners also had some misgivings about the order, but voted in the affirmative anyway. The vote is the culmination of five years of wrangling over “rules of the road” for both internet and mobile wireless networks, and the battle may be far from over.
According to Broadcasting & Cable, “The meeting was characterized by cordial delivery of scathing dissents by the Republicans and a less-than enthusiastic concurrence by swing vote Michael Copps, who said he had seriously considered dissenting before concluding it was at least a first step in the right direction. Republican commissioners said the order would be overturned by the courts, as the FCC's BitTorrent ruling had been.”
Commissioner Mignon Clyburn also had reservations, saying the new guidelines, while “not as strong as they could be, will nonetheless protect consumers as they explore, learn, and innovate online.”
FCC Chairman Genachowski did not address the legal underpinning of the rules, or whether they will pass judicial scrutiny, but did stress in his remarks that the approved order found a workable middle ground between two unacceptable extremes.
"We are told by some not to try to fix what isn't broken, and that rules of the road protecting Internet freedom would discourage innovation and investment," he said. "But countless innovators and investors say just the opposite, including many who generally oppose government action. Over the course of this proceeding we have heard from so many entrepreneurs, engineers, venture capitalists and others working daily to maintain U.S. leadership in innovation. Their message has been clear: the next decade of innovation in this sector is at risk without sensible rules of the road."
Basically, the order creates two classes of service that are subject to different regulatory standards because of their technological differences. One set of regulations applies to fixed broadband networks and the other to mobile wireless networks.
* Wireless and wired providers are required to be transparent in how they manage and operate their networks
* Blocking traffic on the internet is prohibited for both fixed broadband network operators and wireless providers. The provision for each is slightly different.
* Fixed broadband networks cannot block any lawful content, services, applications, or devices on their network.
* Wireless providers are prohibited from blocking all websites, but may block applications and services unless the applications specifically compete with a carrier's telephony voice or video services.
* The blocking rule gives fixed and wireless broadband networks the leeway to reasonably manage their networks.
* Fixed wired broadband providers are prohibited from unreasonably discriminating against traffic on their network.
One of the Republican Commissioners, Robert McDowell, said he voted no because of four main concerns:
1. Nothing is broken with the current system.
2. The FCC doesn't have the legal authority to enforce these rules.
3. The rules will cause harm to the economy by stifling investment.
4. Existing laws and government structures provide ample consumer protections in the event of systemic market failure.
"On this winter solstice, we will witness jaw-dropping interventionist chutzpah as the FCC bypasses branches of our government in the dogged pursuit of needless and harmful regulation," he wrote in a Wall Street Journal column Monday. "The darkest day of the year may end up marking the beginning of a long winter's night for Internet freedom."
Democrat Senator Al Franken also opposes the order. In a speech on the Senate floor this weekend, he opined, “If corporations are allowed to prioritize content on the Internet, or they are allowed to block applications you access on your iPhone, there is nothing to prevent those same corporations from censoring political speech.”
More to come…