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FCC Votes To Propose Net Neutrality Rules

By: John Eggerton, Broadcasting & Cable

As expected, the FCC voted Thursday to launch a rulemaking to expand and codify network neutrality principles.

In what may be a record for expediency, the FCC has already published the notice.

All the commissioners agreed it was the beginning of a process that will solicit much comment. FCC Chairman Julius Genachowski said the FCC will establish a technical 
advisory process to make sure, as Commissioner Meredith Attwell Baker said, that the process is informed by the laws of physics and not just politics.

"Do any of us think that the draft rules proposed today perfect? Are they set in stone? No," said Genachowski. "We are at the beginning of a rulemaking process, with draft rules offered in the context of a Notice that seeks to spot the issues, ask the hard questions, and seek broad public input."

But Genachowski said the goal, without compromise, is to preserve a free and open Internet. It was that open and thorough approach to the goal of an open internet--a 
goal all the commissioners share--that drew unanimous approval Thursday.

He said it was a necessary process because past FCC policies had "left the protection of the free and open Internet unnecessarily vulnerable and uncertain." He cited a combination of factors prompting the need for rules, such as "significant situations" of blocking or degrading lawful services by broadband providers, the fact that the FCC's existing openness principles failed to address nondiscrimination and transparency, the understandable economic incentives for providers to favor their own content, and because un-codified rules have been "attacked" including in court [by Comcast in the BitTorrent case most notably], "because they are not rules developed through the kind of notice-and-public-comment process that we should commence today," the chairman said.

Commissioner Robert McDowell echoed the sentiment that it was the beginning of a process. "No irreversible decisions have been made. We have started a debate in the context of a healthy process."

But while it may be the beginning of the next step, the chairman made clear that the proposal was not coming out of left field, but after years of comment and inquiry. 

"It should come as no surprise that over the past years, the Commission has considered the question of how to safeguard the free and open Internet in more than 10 different proceedings, building a record of over 100,000 pages of comments, submitted by approximately 40,000 companies, organizations, and members of the public," he said. 

The vote was unanimous to launch the process, but the commission Republicans dissented on the factual basis undergirding it.

"The Notice we adopt today is not only a clarion call for Internet freedom," said FCC Commissioner Michael Copps, "it is also a reasoned and rational way to get there." 

Copps has long pushed for a fifth nondiscrimination principle.

Democrat Mignon Clyburn, who has made consumer focus and nondiscriminatory access to essential communications service twin goals of her regulatory philosophy, said the proposed rules were all about "preventing barriers to entry and ensuring that Americans have access to the best and most useful information and services."

McDowell said a few bad actors do not necessarily argue for new government regulations. "I do not share the majority's view that the Internet is showing breaks and cracks, nor do I believe that the government is the best tool to fix it. I also disagree with the premise that the Commission has the legal authority to regulate Internet network management as proposed," he said. 

"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," added Republican Meredith Attwell Baker. 

The chairman conceded that substantial network investment is needed, and that providers need to experiment with new business models, but said that the view that "anything goes" is not an argument. He said FCC rules have been and can be a spur to investment and innovation.

He said that networks need to be able to manage congestion and that Internet technology is changing and the rules need to be sufficiently broad and flexible. He also said the rules should only be what is necessary to insure openness, and no more.

He emphasized the new sixth principle the FCC wants to codify--transparency--which he said should reduce the need for government to step in. 

Genachowski said he wanted to send a message to other countries that this was not a case of the government imposing new restrictions on the Internet. Republican members expressed concern that the new rules could be viewed by other countries as a precedent for their attempts to increase their hold on the net.

Under the proposed new rules, and with a carve out for reasonable network management, Internet Access Service providers:

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 FCC will also look into how and whether openness rules should be applied to managed services like Voice Over Internet Protocol (Google Voice, for instance), but the chairman reiterated that the rules were targeted at the "on-ramp" ISPs and not the Internet itself. 

The rules would not protect access to spam, pornography, or pirated content, the chairman made clear. 

The proposed rules will be the subject of much debate and comment over the next few months. The proposal has a 120-day comment period.


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