The Federal Communications Commission Thursday adopted a Notice of Proposed Rulemaking on regulations which would require Internet service providers to deliver traffic without discrimination, but with language ensuring that the providers would still be permitted to practice prudent network management. That still didn’t satisfy the Commission’s two Republican members, who dissented in part from the NPRM, claiming it’s a fix in search of a problem.
Is there a problem or not?
“I dissent in part today because, as a threshold matter, I am not convinced that there is a sufficient record to establish that a problem exists that should be addressed by Commission rules. As I have said previously, we should not adopt regulations to address anecdotes where there is no fact-based evidence that persuasively demonstrates the presence of a problem,” said Commissioner Meredith Baker (R).
Baker said she had been ready three weeks ago to vote no on even issuing the NPRM, but had come around because of changes that had been made and the desire to build a solit record. “Although I am not convinced that rules are necessary or useful at this time, I am now equally convinced that it is reasonable to take a step back and ask tough and probing questions about the Internet as it exists today and about where we want it to be tomorrow. And I realize that this is the start of the process,” she said.
Chairman Julius Genachowski (D) insisted that there is a problem that the FCC needs to address.
“The problem is not merely that we’ve seen some significant situations where broadband providers have degraded the data streams of popular lawful services and blocked consumer access to lawful applications, even after the Commission adopted its openness principles. Nor is the problem merely that, when the policies summarized in the Internet Policy Statement and its initial four principles have been enforced by the Commission, they have been attacked, including in pending litigation, precisely because they are not rules developed through the kind of notice-and-public-comment process that we should commence today. Nor is the problem merely that the initial four principles failed to address explicitly some important concepts, such as the need for transparency when it comes to network management practices. Nor is the problem merely that broadband providers have understandable economic incentives to favor their own content, applications, or services or to otherwise disfavor competition in ways that may not be entirely consistent with our long-term national interest in promoting consumer choice and preserving a free and open Internet for everyone,” he said. “The heart of the problem is that, taken together, we face the dangerous combination of an uncertain legal framework with ongoing as well as emerging challenges to a free and open Internet,” Genachowski insisted.
Fellow Democrats Michael Copps and Mignon Clyburn praised the NPRM and joined the Chairman in supporting it in full.
Republican Robert McDowell praised Genechowski for fulfilling his pledge to make the actual text of proposed rules available for the public to read. Indeed, the entire 107-page NPRM is now on the FCC website. He voted to go forward with the NPRM, noting that the Chairman had made “edits that allow for ample opportunity to comment on ways to achieve the goal of preserving an open Internet without additional regulation,” which is the route McDowell favors. But he dissented from the proposed rules which would be enforced by the FCC, rather than the marketplace.
Here is the FCC’s summary of what the NPRM proposes:
Under the draft proposed rules, subject to reasonable network management, a provider of broadband Internet access service:
1. would not be allowed to prevent any of its users from sending or receiving the lawful content of the user’s choice over the Internet;
2. would not be allowed to prevent any of its users from running the lawful applications or using the lawful services of the user’s choice;
3. would not be allowed to prevent any of its users from connecting to and using on its network the user’s choice of lawful devices that do not harm the network;
4. would not be allowed to deprive any of its users of the user’s entitlement to competition among network providers, application providers, service providers, and content providers;
5. would be required to treat lawful content, applications, and services in a nondiscriminatory manner; and
6. would be required to disclose such information concerning network management and other practices as is reasonably required for users and content, application, and service providers to enjoy the protections specified in this rulemaking.
The draft rules make clear that providers would also be permitted to address harmful traffic and traffic unwanted by users, such as spam, and prevent both the transfer of unlawful content, such as child pornography, and the unlawful transfer of content, such as a transfer that would infringe copyright. Further, nothing in the draft rules supersedes any obligation a broadband Internet access service provider may have — or limits its ability — to deliver emergency communications, or to address the needs of law enforcement, public safety, or national or homeland security authorities, consistent with applicable law.”
RBR-TVBR observation: We’re not really decided yet on this issue, so the comments on the NPRM will be worth perusing. We would, however, definitely lean toward the side of regulating as little as possible and making any rule as flexible as possible to accommodate changing technology and consumer desires.
That said, we can pretty much guarantee that any regulation at all is going to spark a court battle.