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Cybersecurity & Standards

Today’s Neutrality Rules: Glass Half Empty or Glass Half Full?

By a 3-2 vote, the FCC today finally adopted a set of rules designed to protect Internet openness — otherwise known as Internet neutrality.  Some neutrality supporters responded mainly with criticism, arguing that the rules are too weak.  CDT's statement, though, characterizes the FCC's action as a "vital first step."  Let's take a look at the positive elements — with the important caveat that the actual text and order won't be available for a few days, so we're relying on descriptions provided in the Commission's meeting today.

The headline item is simple:  the rules establish a nondiscrimination principle for broadband Internet access.  This breaks new ground; the FCC's 2005 Internet Policy Statement barred carriers from engaging in the outright blocking of websites or services, but did not on its face say anything about discrimination.  Indeed, CDT at various points had urged the FCC to add a new principle regarding nondiscrimination.  In doing so now, the FCC takes a major step forward.

Second, the rules are, well, actual rules.  The legal standing of the Policy Statement was never clear; as CDT had noted, it was always doubtful whether the principles set forth in the statement had true legal force at all, and hence whether they created anything the agency could move to "enforce."  By adopting actual rules, the FCC is now creating a legal framework with real obligations that can be enforced.

Third, the transparency requirements may well provide a useful check on the risk of bad behavior.  Since transparency seems to represent low-hanging fruit in this proceeding, in the sense that it doesn't generate nearly as much controversy as the other elements, neutrality supporters probably have a tendency to take it for granted.  But that doesn't mean it won't be beneficial.

Fourth, while the rules won't completely ban paid prioritization, we're told that the final order will state that paid prioritization would generally qualify as "unreasonable discrimination" for purposes of the rules.  That kind of presumption should provide a major disincentive for carriers to embrace paid prioritization schemes on any kind of significant scale.

In all of these areas, the rules appear to offer a major step forward, not just from the status quo (which, by the way, is zero legal protections for Internet neutrality), but also from the regime that existed under the FCC's 2005 Policy Statement.  We think it is a mistake to underestimate the amount of progress this represents.

Having said all that, of course there are outstanding questions.  Will there be loopholes that undermine the rules' effectiveness?  Maybe; that will depend in part on the details of the final rules and order (not yet available, as we noted), and in part on how the rules are interpreted and implemented over time.  Will openness principles be applied to wireless?  Again, hard to say for sure; wireless is exempt from the nondiscrimination rule, but Chairman Genachowski was careful to say that today's action does not mean the FCC blesses discrimination in the wireless context and that the FCC will be watching the wireless market closely.  Finally, what about the FCC's legal basis for adopting these rules? We'll be interested to see the FCC's discussion of that issue for two big reasons.  Obviously, today's action won't have the positive impact we've suggested if it ends up getting struck down by the courts.  And from CDT's perspective, asserting FCC authority on an overly broad basis would set a dangerous precedent. 

The current FCC appears to recognize that its role here is limited to addressing the "on ramps" that connect people to the Internet, rather than all the content and services that flow over the network.  But future Commissions might not be so restrained, and we'd hate to see an FCC legal rationale that would appear to justify agency authority to regulate anything and everything in the Internet ecosystem.