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FCC files net neutrality rules, sets stage for legal fight

FCC Chairman Julius Genachowski
Image used with permission by copyright holder

The Federal Communications Commission has registered its new net neutrality regulations with the Department of Management and Budget, bringing the regulations one step close to being official. The OMB will make the regulations available for comment for 30 days and, if after the 30 day period the OMB issues an approval, the FCC’s net neutrality framework will go into effect 60 days later.

The FCC’s latest attempt to regulate network neutrality comes in the wake of its Internet freedom principles, first articulated in 2005, were eviscerated in court by Comcast in the wake of its having been found to be interfering with P2p networking traffic. Comcast didn’t attack the principles themselves, but rather the FCC’s authority to mandate network neutrality, since that power had never been explicitly granted to the agency by Congress. Years of debate followed, with the FCC eventually giving up on working with Internet and mobile stakeholders and opting to forge its own path based on what the agency believes is sound legal footing.

The FCC’s new regulations enable Internet access providers to largely regulate their networks in any way they see fit, so long as they do so with disclosure and transparency so customers can make informed decision about service. However, the regulations also protect consumers’ ability to use any “lawful” device they want on the Internet, as well as to send and receive any lawful traffic, whilst barring “unreasonable” traffic discrimination on the part of ISPs.

The regulations also enables ISPs to create broadband networks separate from the public Internet that would not be subject to neutrality regulation, and offers mobile operators significant flexibility in how they manage their networks while enshrining a basic no-blocking rule for mobile broadband. The FCC promises to keep a close eye on mobile broadband and enact additional regulation if necessary.

Although the regulations are not yet official, they were immediately challenged by telecom operator Verizon, who argues the FCC still lacks the authority to mandate net neutrality practices. Verizon’s prompt action very likely sets the stage for a significant industry challenge to net neutrality regulation. Comcast has characterized network neutrality as an “engineering” issue, rather than a policy problem, and argues the industry will do a better job self-regulating access rather than being burdened by government regulation.

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