FCC Releases Net Neutrality Rules, But Litigation and Investigation Likely

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On Thursday, March 12, the Federal Communications Commission (FCC) released 400 pages of net neutrality rules, in which the commission reclassified broadband Internet service as a public utility, subject to Title II regulation. The rules were passed by a 3–2 margin on February 26, but March 12 was the first time they were released to the public. It is likely the new rules will be met with legal challenges from broadband providers, as well as an investigation into the rulemaking process by the FCC Inspector General.

The FCC issued the regulations in an effort to protect an open Internet by placing bans on blocking; “throttling,” that is, impairing or degrading the delivery of content to a user; and paid prioritization, which allows a provider to accept payment to benefit content, applications, services, or devices.

The FCC also stressed that it would not use Title II to set prices for broadband services, nor would it result in the imposition of any new federal taxes or fees.

Noting that an open Internet is essential to the American economy, the commission stressed that the “overwhelming consensus on the record is that carefully tailored rules to protect Internet openness will allow investment and innovation to continue to flourish…. [T]oday, we adopt carefully tailored rules that would prevent specific practices we know are harmful to Internet openness … as well as a strong standard of conduct designed to prevent the deployment of new practices that would harm Internet openness.”

The commission wrote that the “record” shows that blocking, throttling, and paid prioritization “invariably harm the open Internet … this Order bans each of them, applying the same rules to both fixed and mobile broadband Internet access service.”

The ban on throttling, the commission explained, was, among other things, necessary to “avoid gamesmanship designed to avoid the no-blocking rule by, for example, rendering an application effectively, but not technically, unusable.”

The regulations also create a “no unreasonable interference/disadvantage” rule to protect free expression, the commission noted. The commission noted that broadband providers are gatekeepers and, as such, they “can block access altogether; they can target competitors, including competitors to their own video services; and they can extract unfair tolls.” The rule stipulates that a broadband provider may not unreasonably interfere with or unreasonably disadvantage end users’ ability to select, access, and use broadband Internet access service or the lawful Internet content, applications, services, or devices of their choice.

One aspect that has raised questions about enforcement is the FCC’s requirement that Internet service providers (ISPs) are “just and reasonable” in regards to traffic transmissions and that potential violation cases will be decided on an individual basis, as reported by Newsweek.

While the FCC is reviewing disputes over interconnections on the Internet — for example, Netflix’s allegations that Comcast was throttling its services, thus making Netflix almost unusable for Comcast customers — it is not subjecting these interconnections between companies to the new regulations, as reported by the New York Times. The rules apply only to connections between ISPs and end users, Newsweek noted.

In its rules, the commission noted that it lacked enough relevant information in regards to Internet traffic exchange to make such a decision. “Thus, we find that the best approach is to watch, learn, and act as required, but not intervene now, especially not with prescriptive rules. This Order — for the first time — provides authority to consider claims involving interconnection, a process that is sure to bring greater understanding to the Commission.”

Once the rules are published in the Federal Register, they will go into effect 60 days later.

But things may not be so simple. Once published, the new rules are expected to be met with a number of legal challenges from broadband providers, according to media reports. Opponents have a 30-day window from the time the rules are published to file a challenge, according to Newsweek.

This week, Rep. Jason Chaffetz (R-UT), the chairman of the U.S. House of Representatives Oversight Committee, announced that David Hunt, the FCC inspector general, would be launching an investigation into the FCC’s Net Neutrality rulemaking process to see if the commission was improperly collaborating with the White House on the rules, as reported by the Washington Post.