The FCC’s watered-down net neutrality rules, published just before the holiday, have failed to satisfy any parties completely. Public interest groups claim the laws are too weak but Republican lawmakers are already pledging to repeal them while some telcos may mount lawsuits.
The regulatory agency remained bitterly divided to the last ‘ passing the rules by 3 to 2, on an issue that has proved complex and divisive ever since president Obama came to power two years ago, with a pledge to adopt neutrality policies for the internet. Particularly contentious has been the issue of whether it was right or practical to extend full non-discrimination to the wireless web, given the constrained nature of mobile capacity.
On the wireless side, the cellcos will be barred from blocking services like Google Voice and Skype simply because they compete with their own voice and video offerings, as well as those in which they have an attributable interest. However, unlike wireline broadband carriers, they will not face the same wider ban on unreasonable discrimination in transmitting lawful network traffic.
Wireless operators will also face transparency requirements on network management policies and a basic ‘no-blocking’ rule on lawful content and applications. The latter will not generally apply to app stores. The rules allow for reasonable network management, paving the way for cellcos to use traffic handling tools to set different levels of service or prioritize certain users or content ‘ this was defined as actions that are “appropriate and tailored to a legitimate network management purpose, taking into account network architecture’.
As the National Journal reports, Genachowski said the FCC recognizes there are significant differences between wireless and wired networks, among them the “unique technical issues involving spectrum and mobile networks, the stage and rate of innovation in mobile broadband; and market structure’.
Wireline providers will be allowed to offer “specialized services” apart from the open internet but will have to demonstrate that these do not detract from investment in the open web. They will be barred from unreasonable discrimination against any form of content, but will be free to engage in reasonable network management. ‘Pay for prioritization” deals, as a general rule, will not satisfy the ban on unreasonable discrimination.
The Republican FCC commissioners, Robert McDowell and Meredith Attwell Baker, voted against the proposal from chairman Julius Genachowski, arguing that it was unnecessary, legally unjustified and politically motivated. The three Democrats ‘ Genachowski, Michael Copps and Mignon Clyburn, supported the plan. Copps had been the deciding factor until the eleventh hour, and ‘ along with Clyburn ‘ was still expressing concerns that the new framework does not go far enough.
“Given the importance of an open internet to our economic future, given the potentially irreversible nature of some harmful practices, and given the competition issues among broadband providers, it is essential that the FCC fulfil its historic role as a cop on the beat to ensure the vitality of our communications networks and to empower and protect consumers of those networks,” Genachowski said.
As expected, Genachowski backed away from trying to reclassify broadband services under Title II of the Telecommunications Act, to categorize them as telcos or common carrier services. Instead, the FCC retains the right to promote advanced telecoms services and encourage broadband deployment, which will anger those who want the FCC’s power to dictate broadband rules curtailed. However, Commissioner McDowell complained that the order was a “Title II order dressed in a threadbare Title I disguise’, saying Congress has not explicitly given the FCC power over broadband. “The FCC is not Congress,” he said. “We cannot make laws.’
Verizon Communications is said to be considering a lawsuit and McDowell fears the rules will put the FCC on a ‘collision course’ with Congress.
In contrast, Copps had wanted reclassification under Title II and greater equality between wired and wireless. He said he had considered voting against the proposals but had acquiesced for the sake of keeping the neutrality process on track, otherwise the “wheels of network neutrality would grind to a halt for at least the next two years’.