FCC sets open Internet vote: Framework just enough to annoy everyone

The FCC is planning to vote on draft rules for an open Internet on Dec. 21. Next up: A wide range of reaction and a framework that won't completely satisfy anyone.
Written by Larry Dignan, Contributor on

The Federal Communications Commission is planning to vote on draft rules for an open Internet on Dec. 21. Next up: A wide range of reaction and a framework that won't completely satisfy anyone.

The news comes as Comcast and Level 3 are bickering over fees that have stoked the net neutrality debate again.

In prepared remarks, FCC Chairman Julius Genachowski said an open Internet order will deliver a framework that addresses the following goals:

  • Ensure the Internet is a platform for innovation and job growth;
  • Protect free expression;
  • Create regulatory certainty;
  • And spur investment.

Specifically, the proposal 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.

Genachowski said:

Adoption would culminate recent efforts to find common ground -- at the FCC, in Congress, and outside government, including approaches advanced by both Democrats and Republicans, and by stakeholders of differing perspectives.  In particular, this proposal would build upon the strong and balanced framework developed by Chairman Henry Waxman, which garnered support from technology and telecommunications companies, big and small, as well as from consumer and public interest groups.

He added that the FCC vote doesn't "preclude action by Congress."

Waxman's framework, which we addressed in a previous post, is a middle-of-the-road framework that will allay broadband provider concerns and keep them honest as gatekeepers on the Internet. The big item is that Waxman proposed to regulate broadband providers as information services (title I) instead of telephone companies (Title II).

Reaction to the FCC's proposed vote breaks down like this:

Kevin Werbach, a legal studies an ethics professor at Wharton, said in a blog post:

I’m confident of two things: Hardly anyone will like the proposal; and it’s the right thing to do.

Advocates of network neutrality will be disappointed the FCC isn’t going forward with “reclassification” of broadband access as a regulated telecommunications service, while many Republicans and network operators will complain about a “power grab” to “regulate the Internet” even after Democratic losses in the midterm elections.  Both should  put aside their ideologies and look realistically at the situation.  Don’t let the perfect be the enemy of the good.

If you believe in the need to protect the open Internet, this is the realistic way forward, and it could lay the groundwork for other steps if necessary in the future.  If you see network neutrality as a dangerous drag on Internet investment, this is the realistic way to remove that regulatory overhang. Kill this proposal, and it’s hard to envision anything but years of further uncertainty, most likely ending with a worse compromise down the road. I don’t love it either, but I’m a realist.  The fate of network neutrality will hinge not on the FCC’s rhetoric, but on its implementation.  There can’t be implementation without an order.  And I can’t see any other order making it through in the current environment.

Comcast Executive Vice President David L. Cohen said in a statement:

As we have said previously, this was never about whether the Internet should be free and open as the ISP community (including Comcast) has long pledged to take no steps that would threaten the openness of the Internet -- the issue was how the FCC could accomplish this objective without also creating unintended and adverse consequences.

We believe Chairman Genachowski's proposal, as described this morning, strikes a workable balance between the needs of the marketplace and the certainty that carefully-crafted and limited rules can provide to ensure that Internet freedom and openness are preserved.

Bernstein analyst Craig Moffett said:

The proposal codifies the familiar central tenets of Net Neutrality. It forbids blocking or degrading any legal website and application, and applies "transparency" requirements to key rules and policies. Importantly, it applies to both wireline and wireless networks, a key sticking point in prior negotiations. But underlying the proposal is a sweeping new zeitgeist. The thrust of the proposal has shifted from purely preserving "openness" to now simultaneously acknowledging the need for broadband rationing. This acknowledgement is a tectonic shift, and its importance simply cannot be overstated.

Plenty of hurdles remain, however, so this cannot be considered the final chapter. First, the FCC's legal foundation for this approach remains uncertain. The DC Circuit Court of Appeals specifically challenged the FCC's authority to regulate broadband under a Title I framework, and this order is therefore inevitably going to be challenged. Moreover, Democratic Commissioners Michael Copps and Mignon Clyburn are believed to still advocate a Title II approach, and it is unclear whether this Title I approach will garner their support. Finally, House Republicans have said in the past that they would vigorously oppose any FCC neutrality rules.

Related: Comcast-Level 3 fight goes public: Is this really about Net Neutrality?

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