FCC Finalizes Net Neutrality Rules

The Federal Communications Commission has finally issued their net neutrality rules by publishing them with the Office of the Federal Register.  The three rules listed are relatively simple:

To provide greater clarity and certainty regarding the continued freedom and openness of the Internet, we adopt three basic rules that are grounded in broadly accepted Internet norms, as well as our own prior decisions: 

i. Transparency. Fixed and mobile broadband providers must disclose the network management practices, performance characteristics, and terms and conditions of their broadband services;

ii. No blocking. Fixed broadband providers may not block lawful content, applications, services, or non-harmful devices; mobile broadband providers may not block lawful websites, or block applications that compete with their voice or video telephony services; and

iii. No unreasonable discrimination. Fixed broadband providers may not unreasonably discriminate in transmitting lawful network traffic.

The statement is in contrast to the content in the rest of the 155 page document that both explain the scope of the rules as the FCC intends, and justifies them in light of prior administrative and court proceedings that state that the Commission does not have the authority to regulate in this area.  For that, see Part IV, The Commission’s Authority To Adopt Open Internet Rules, between pages 75 and 100.  The Commission synthesizes language in §706 of the Telecommunications Act of 1996 with other language within the Act that gives the Commission authority to promote competition in broadband.  It may or may not be a bit of a stretch on the part of the Commission, but it is at least a preview of the likely litigation that will ensue.  Verizon and Metro PCS both sued over the notice for preliminary rule-making and the Court of Appeals for the District of Columbia threw the suit out as premature.  The issue of authority is ripe now that the final rule is announced, effective November 20, 2011.

The Commission does have one reason for going through with this process despite the legally shaky ground on which it rests.  At the very least it has set a baseline for rules and how they should be interpreted.  Assuming they are invalidated, an Internet provider’s conduct can be still measured as to whether they lived up to the principles embodied in the rules.  Enforcement is one thing, but companies may be sensitive to public relations depending how they are portrayed. 

The rules and accompanying report as filed with the Office of the Federal Register are here.  [MG]