After years of debating, infighting, wrangling in court, and mostly just waiting, the Federal Communications Commission has approved an Order that will adopt "basic rules of the road to preserve the open Internet as a platform for innovation, investment, competition, and free expression." Net neutrality has finally arrived—but it's not what backers of the idea thought they'd be getting.
"Today for the first time the FCC is adopting rules to preserve basic Internet values," declared FCC Chair Julius Genachowski, who called the Order "a strong sensible non-ideological framework that protects Internet freedom."
The regulations ban content blocking and require transparency from ISPs. They also require network management and packet discrimination to be "reasonable," but they exempt wireless broadband from all but the transparency and blocking rules.
"Managed services" delivered over a last-mile broadband pipe will be allowed, as we expected, though the FCC does say it will monitor them for anti-competitive behavior.
The Commission adopted the Open Internet Order by a vote of three to two. One commissioner, Democrat Mignon Clyburn, announced her partial support for the decision the day before, while the two Republican commissioners have long made their opposition clear.
Even before today's vote, some reform groups expressed their disappointment with the mildness of the decision; for instance, here's a dispatch from the Media Access Project.
"MAP respects and admires the work of Commissioners Michael J. Copps and Mignon Clyburn on this important issue, but MAP cannot support the watered-down, loophole-ridden option that the FCC appears to have chosen," the group's statement last night declared. (Note that Chairman Genachowski doesn't share in this admiration.) "The inadequate protections for wireless technologies are especially troublesome, as wireless services provide an onramp to the Internet for many of the nation's poor and minority citizens."
Meanwhile, conservatives pledged their undying opposition to the decision. "I had always held out hope that the FCC wouldn't really move to regulate the Internet, not until hell froze over," declared Randolph May of the Free State Foundation. "I guess the fact that the temperature here in Washington has been not much above freezing for about two weeks now is not a good sign."
Voting against the move, Commissioner Robert M. McDowell warned that it would bring on an "era of regulatory arbitrage," chart a "collision course with Congress," and represented "one of the darkest days in recent FCC history."
A long and winding road
The road to these regulations has been long and tortuous. Following the 2008 order against Comcast for P2P throttling, the agency proposed transparency and non-discrimination rules. Then, when the DC Circuit Court of Appeals struck down the Comcast decision earlier this year, the agency proposed considering ISPs as partial common carriers.
Telco and cable ISP opposition to that idea led to a long string of meetings at the Commission, a compromise proposal from Google and Verizon, and draft legislation from Representative Henry Waxman (D-CA). Now we have this modified net neutrality order, which has made few parties happy and may not get very far in court if it is enforced. These rules are based in part on Section 706 of the Telecommunications Act, which requires the FCC to encourage "the deployment of advanced telecommunications to all Americans."
So is this move a setback or progress?
"Yes, it's a step forward," declared Harold Feld of Public Knowledge, "but hardly more than an incremental step beyond the Internet Policy Statement adopted by the previous Republican FCC. After such an enormous build up and tumultuous process, it is unsurprising that supporters of an open Internet are bitterly disappointed — particularly given the uncertainty over how the rules will be enforced.
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