The FCC wants to be the Internet traffic cop, but Congress has never really authorized it to take such a role. That debate will pick up with a new Congress in January.
When some States tried to regulate open access rules for cable and DSL, they were challenged in court on the grounds that Internet access was the FCC's job -- and the cable companies won that one.
So if Congress or another court decides that Internet access isn't the FCC's job, does that mean that it's back to the States?
The Federal Communications Communication approved net neutrality regulations 3-2 on Tuesday, but these rules are likely to face challenges from a new Congress.
Earlier this month, FCC Chairman Julius Genachowski proposed a vote on an open Internet framework. The biggest item is that the rules would bar carriers from discriminating against legal Internet traffic. The catch is that providers could charge more to companies that want faster service for games, videos and other bandwidth intensive content.
In an open meeting, Genachowski said that open Internet rules are the first to protect basic values. There are no regulations today. “We’re told by some to not try and fix what’s not broken. Countless innovators and investors say just the opposite. We’ve heard from so many entrepreneurs, venture capitalists and CEOs and their message is clear: The next decade of innovation is at risk without basic rules of the road,” he said. “Our action will strengthen Internet job creation and ensure Internet freedom at home and around the world.”
This framework breaks down like this:
- Consumers will have a transparent view into how networks are being managed. This information will allow consumers to make a decision on whether to subscribe or use a particular broadband network.
- Consumers and innovators “have a right to send and receive lawful Internet traffic — to go where they want and say what they want online, and to use the devices of their choice.” Blocking legal content, apps, devices and services is prohibited.
- No central authority should be able to pick winners or losers by discriminating against “lawful network traffic.”
- Meanwhile, broadband providers should have the “meaningful flexibility” to manage their networks. These providers should also have incentives—ie profit potential—to build out networks.
FCC commissioner Michael Copps said that a vote for the net neutrality rules was one for free speech and innovation. “Previous telecommunications technologies also preached openness and then fell under consolidated control,” said Copps, who railed against “entrenched interests.” Copps said the FCC’s net neutrality framework didn’t go far enough, but he’d vote for it so the gears of an open Internet wouldn’t halt. Some provisions may need “repaving.” Commissioner Mignon Clyburn supported the framework, but wanted wireless included. Genachowski argued that wireless broadband is too nascent to be included in the framework.
Commissioner Robert McDowell said he “strongly disagrees with this order.” McDowell said the FCC can’t make laws and Congress is going to shut down the net neutrality framework. In other words, there’s a legislative collision course on tap. He called the vote “the FCC’s darkest day” and courts will sink the framework.
Meredith Attwell Baker, another FCC commissioner, sided with McDowell. She said that the FCC is messing with the one part of the economy that’s working. Baker argued that consumers won’t benefit and regulators are overreaching without evidence of wrongdoing. The FCC won’t be successful as the Internet’s referee, she said. “The vote today is not the end of this debate,” said Baker.
Carriers such as Comcast have called Genachowski’s framework a workable compromise.
With the vote out of the way net neutrality becomes a political hot potato in Congress. The FCC wants to be the Internet traffic cop, but Congress has never really authorized it to take such a role. That debate will pick up with a new Congress in January.
