Today the FCC voted to adopt its version of Network Neutrality, or the principle that the Internet should remain a free and open space for consumers and business innovation alike. The final order adopted by the agency enshrined the following six principles:
1. Transparency: Consumers and innovators have a right to know the basic performance characteristics of their Internet access and how their network is being managed;
2. No Blocking: This includes a right to send and receive lawful traffic. This prohibits the blocking of lawful content, apps, services and the connection of non-harmful devices to the network;
3. Level Playing Field: Consumers and innovators have a right to a level playing field. This means a ban on unreasonable content discrimination. There is no approval for so-called “pay for priority” arrangements involving fast lanes for some companies but not others;
4. Network Management: This is an allowance for broadband providers to engage in reasonable network management. These rules don’t forbid providers from offering subscribers tiers of services or charging based on bandwidth consumed;
5. Mobile: The provisions adopted today do not apply as strongly to mobile devices, though some provisions do apply. Of those that do are the broadly applicable rules requiring transparency for mobile broadband providers and prohibiting them from blocking websites and certain competitive applications;
6. Vigilance: The order creates an Open Internet Advisory Committee to assist the Commission in monitoring the state of Internet openness and the effects of the rules.
Like any good compromise, neither side will be happy with what the FCC adopted. Consumer groups will argue that it does little to prevent the largest telecommunications firms from making access a challenge given the allowance for tiered pricing. Telecom will no doubt argue that the agency overreached in terms of managing the marketplace.
Throughout the hearing Chairman Genachowski made it clear that he was seeking a middle path, perhaps a result of months of frustrating attempts to forge some kind of bipartisan agreement for regulation. According to Genachowski reliability and predicability for both consumers and innovators were the driving principles behind the order ultimately adopted by the agency.
Another sign that while far from perfect the FCC may have chosen the best path through the regulatory gridlock is the fact that there was bi-partisan dissent from the order. Predictably Republican commissioners believe that the FCC is beyond the scope of its authority to regulate the Internet while Democratic commissioners believe that the order, in failing to extend all of the fixed rules to mobile devices, does not go far enough.
The order ultimately passed with a 3-2 vote, with “ayes” from Genachowski, Copps and Clyburn, the more liberal members of the Commission. While Clyburn was the most vocal critic from the left of the rules adopted he chose to vote for the measure rather than see it languish any more than it already has.
While far from perfect the FCC took a step in the right direction today. Ultimately it is easier to build on the rules passed than to try lay the original foundation once the Republicans assume control of Congress. The key in moving forward will be to ensure the agency has the resources and will-power necessary to enforce these rules and to shore up, as best as possible, the rules from partisan attacks from the right.
Republicans haven’t missed a beat and have already vowed to introduce legislation to overthrow the rules and to withdraw funds appropriated the the FCC to execute the rules. Knowing that Congress will change hands in a few short weeks Genachowski was wise to get these rules passed now while he can, even if they lack some of the teeth many of us hoped for. That said, the battle to keep the Internet open and accessible is far from over.
photo courtesy of dcmorton via Flickr