FCC Net Neutrality Order Rules - Not Looking Like It's Going To Happen

In my last post I took a look at the first basic rule of Transparency in the 194 page Net Neutrality Report and Order document approved by the FCC on 12/21/10 and released on 12/23/10. Today let’s take a quick look at the second basic rule, No blocking, and the third rule, No unreasonable discrimination.

Starting with the No blocking rule, here’s a quote from page 88 of the report:

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 management.

This rule actually looks pretty good fo the consumer and the content provider but not so good for the ISPs like Verizon and Comcast. Here’s some detail from Stacey Higginbotham over at Gigaom.com hin her review titled Who Wins and Loses Under the FCC’s Net Neutrality Rules.

• ISPs can’t block lawful content, but won’t be put in a position to judge what is lawful or not.
• ISPs are not allowed to degrade content to the point where it can’t go through. For example, Comcast always maintained it didn’t block P2P files; it merely slowed the transmission of those files. However, that had the same effect as blocking P2P files, a distinction the FCC won’t tolerate.
• The rules also seek to prohibit the blocking of devices from wired networks by creating ungainly and expensive certification procedures such as Comcast was recently accused to be doing with Zoom Telephonics.

Higginbotham says this is good for consumers on fixed broadband networks, good for service providers in general, and bad for ISPs interested in overtly blocking competitive content.

Let’s look at the No unreasonable discrimination rule next, starting with another quote from page 88 of the report.

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.

This is where the FCC condones usage-based pricing. There is also some crossover with the transparancy rule. Here’s more from the Higginbotham piece on the unreasonable discrimination rule.

• Thanks to ISPs telling end users how they manage their networks, consumers can ensure that discrimination isn’t unreasonable. End users can also discriminate, for example, blocking porn from their homes.
• This is also where the FCC condones usage-based pricing, although it assures us it will keep a watchful eye out for anti-consumer packages. In general, the FCC will scrutinize discrimination that harms end users, harms a competitive service to one an ISP provides or stifles free expression, such as slowing traffic from a website the ISP doesn’t agree with.
• It also calls out paid prioritization, by which a content provider pays an ISP more money in order to deliver its content faster as problematic.

Higginbotham says this rule is not great for consumers or web service and device providers, because they will have to go to the FCC and prove the ISP is being unreasonable when problems occur. Not every consumer or company has the resources for such a fight.

I’ve read all 194 pages (more than once!) and found the document to be unclear, confusing and at times contradictory. I’m not an attorney but it looks like I’m not the only one having problems understanding it. Consumers, providers, and ISPs are all claiming victory which likely means they are almost as confused as me. They all appear to be interpreting to their advantage. This kind of confusion typically leads to legal issues and that is the last thing we need when we’re trying to catch up with the rest of the world.

There’s also 85 new Republicans (along with 9 new Democrats) coming to take control of Congress in a couple of days on January 5. In a December 21 press conference, incoming House Commerce Chairman Fred Upton (R-Mich) said that his committee is planning multiple hearings to beat back regulations the FCC approved. Other Republicans are backing him up including chairman of the Communications subcommittee Greg Walden (R-Ore.) and incoming vice chairwoman of the trade subcommittee Marsha Blackburn (R-Tenn.) who has also said she will reintroduce legislation to block the rules.

It's not looking like this is going to happen.