The five FCC commissioners approved Chairman Julius Genachowski’s middle-of-the-road approach to achieving a free and open internet on a 3-2 party line vote, and even among the three Democrats, the vote was split between approving of and concurring with the Order.
Genachowski voted for the order; Democrat Mignon Clyburn approved in part and concurred in part; Democrat Michael Copps, who has been skeptical on grounds the Order will not be strong enough, concurred; and the two Republicans, Robert McDowell and Meredith Baker, both dissented.
Describing the intent of the rules, the FCC wrote, “The rules ensure that Internet openness will continue, providing greater certainty to consumers, innovators, investors, and broadband providers, including the flexibility providers need to effectively manage their networks. These rules were developed following a public rulemaking process that began in fall 2009 and included input from more than 100,000 individuals and organizations and several public workshops.”
Describing the mechanism of the rules, FCC said, “The rules require all broadband providers to publicly disclose network management practices, restrict broadband providers from blocking Internet content and applications, and bar fixed broadband providers from engaging in unreasonable discrimination in transmitting lawful network traffic. The rules ensure much-needed transparency and continued Internet openness, while making clear that broadband providers can effectively manage their networks and respond to market demands.”
The FCC provided detail on the rules:
Rule 1: Transparency — A person engaged in the provision of broadband Internet access service shall publicly disclose accurate information regarding the network management practices, performance, and commercial terms of its broadband Internet access services sufficient for consumers to make informed choices regarding use of such services and for content, application, service, and device providers to develop, market, and maintain Internet offerings.
Rule 2: No Blocking — A person engaged in the provision of fixed broadband Internet access service, insofar as such person is so engaged, shall not block lawful content, applications, services, or non-harmful devices, subject to reasonable network management.
A person engaged in the provision of mobile broadband Internet access service, insofar as such person is so engaged, shall not block consumers from accessing lawful websites, subject to reasonable network management; nor shall such person block applications that compete with the provider’s voice or video telephony services, subject to reasonable network.
Rule 3: No Unreasonable Discrimination — A person engaged in the provision of fixed broadband Internet access service, insofar as such person is so engaged, shall not unreasonably discriminate in transmitting lawful network traffic over a consumer’s broadband Internet access service. Reasonable network management shall not constitute unreasonable discrimination.
The Order provides for reasonable network management practices, notes that there will be a high hurdle to justify paid prioritization, saying such a practice was unlikely to clear the “no unreasonable discrimination” hurdle, and noted that the still-in-development mobile broadband universe would be handled differently.
RBR-TVBR observation: If you’ve been following what people have been saying about this beforehand, then you pretty much know what they are saying now. It’s not enough, it’s only a start, it’s a horrific overreach. Some even seem to think it’s just right. We suspect the next stops will be Capitol Hill, and most likely, the courts.