Posted on 21 Dec 2010
The Federal Communications Commission appears ready to pass contentious new rules for Internet traffic, a move likely to face legal challenges and create uncertainty about Internet regulation.
The proposed rules of the online road would prevent fixed-line broadband providers like Comcast and Qwest from blocking access to sites and applications. The rules, however, would allow wireless companies more latitude in putting limits on access to services and applications.
Before a vote set for Tuesday, two Democratic commissioners said Monday that they would back the rules proposed by the F.C.C. chairman, Julius Genachowski, which try to satisfy both sides in the protracted debate over so-called network neutrality. But analysts said the debate would soon resume in the courts, as challenges to the rules are expected in the months to come.
Net neutrality, broadly speaking, is an effort to ensure equal access to Web sites and cutting-edge online services. Mr. Genachowski said these proposed rules aimed to both encourage Internet innovation and protect consumers from abuses.
“These rules fulfill a promise to the future — to companies that don’t yet exist, and the entrepreneurs that haven’t yet started work in their dorm rooms or garages,” Mr. Genachowski said in remarks prepared for the commission’s meeting on Tuesday in Washington. At present, there are no enforceable rules “to protect basic Internet values,” he added.
Many Internet providers, developers and venture capitalists have indicated that they would accept the proposal by Mr. Genachowski, which Rebecca Arbogast, a regulatory analyst for Stifel Nicolaus, a financial services firm, said “is by definition a compromise.”
The companies have said the rules would provide some regulatory certainty. In private, they have acknowledged the proposal could have been much worse. If approved, they “will give some assurances to the companies that are building Web applications — companies like Netflix, Skype and Google — that they will get even treatment on broadband networks,” Ms. Arbogast said.
But a wide swath of public interest groups have lambasted the proposal as “fake net neutrality” and said it was rife with loopholes. One group, Public Knowledge, said that instead of providing clear protections, the F.C.C. “created a vague and shifting landscape open to interpretation. Consumers deserved better.”
Notably, the rules are watered down for wireless Net providers like AT&T and Verizon, which would be prohibited from blocking Web sites, but not from blocking applications or services unless those applications directly compete with providers’ voice and video products, like Skype.
F.C.C. officials said there were technological reasons for the wireless distinctions, and that they would continue to closely monitor the medium.
Citing the wireless proposal, Senator Al Franken, Democrat of Minnesota, said over the weekend that the F.C.C. was effectively allowing discrimination on the mobile Net, a fast-growing sector.
“Maybe you like Google Maps. Well, tough,” Mr. Franken said on Saturday on the Senate floor. “If the F.C.C. passes this weak rule, Verizon will be able to cut off access to the Google Maps app on your phone and force you to use their own mapping program, Verizon Navigator, even if it is not as good.
And even if they charge money, when Google Maps is free.”
He added, “If corporations are allowed to prioritize content on the Internet, or they are allowed to block applications you access on your iPhone, there is nothing to prevent those same corporations from censoring political speech.”
Mr. Franken and other critics say the rules come with major caveats; for instance, they would allow for “reasonable network management” by broadband providers. And they would discourage but not expressly forbid something called “paid prioritization,” which would allow a media or technology company to pay the provider for faster transmission of data, potentially creating an uneven playing field.
The F.C.C. officials also said that the order would require transparency about those network management practices. “That sunshine will help deter bad behavior,” one of the officials said. They spoke only on the condition of anonymity because the F.C.C. order has not been made public.
President Obama has repeatedly indicated his support for net neutrality principles, and his chief technology officer, Aneesh Chopra, said on Dec. 1 that the F.C.C. proposal was an “important step in preventing abuses and continuing to advance the Internet as an engine of productivity growth and innovation.”
The two Democratic commissioners, Michael Copps and Mignon Clyburn, acknowledged on Monday that the order was not as strong as they would have liked. But they said it had been improved this month in discussions with Mr. Genachowski, and they said they would not oppose it.
Their votes along with Mr. Genachowski’s would be enough to approve the order at the F.C.C. meeting on Tuesday.
Two Republican commissioners, Meredith Baker and Robert McDowell, are expected to oppose it. Republicans have suggested that the net neutrality rules are an example of government overreach; in an opinion piece on Monday in The Wall Street Journal, Mr. McDowell asserted that “nothing is broken that needs fixing.”
In a statement Monday afternoon, Mr. Copps strongly disagreed. He said he wanted to ensure that the Internet “doesn’t travel down the same road of special interest consolidation and gate-keeper control that other media and telecommunications industries — radio, television, film and cable — have traveled.”
“What an historic tragedy it would be,” he said, “to let that fate befall the dynamism of the Internet.”