FCC releases 400-page net neutrality order

The 400-page net neutrality order released by the U.S. Federal Communications Commission includes a long legal defense of the commission's vote last month to reclassify broadband as a regulated telecommunications service.

The order, released Thursday in the wake of the commission's vote to approve net neutrality rules in late February, establishes "clear and enforceable rules" to protect consumers, an FCC official said.

While the order is long, the actual changes to the Code of Federal Regulations that the FCC approved amount to eight pages, running from pages 283 to 290 in Appendix A of the order. An executive summary describing the changes runs from page 7 to page 18.

The FCC order includes a history of net neutrality efforts at the agency as well as a lengthy justification for the rules and an analysis of potential legal issues. Long statements from the agency's five commissioners run from pages 314 to 400 of the order.

A lengthy legal analysis is needed because the FCC anticipates a challenge to the rules, an FCC official said during a background briefing for the press. The new rules reclassify broadband as a regulated telecommunications service, adopting some rules applied to traditional telephone services. Since 2002, the commission has considered broadband to be a lightly regulated information service.

Broadband is a different service than it was in 2002; now, most subscribers use broadband only as a transmission platform, rather than look to their ISP to provide content as well, the FCC official said.

The document, in several sections, points to legal grounds for its action from three sections of the Telecommunications Act as well as past court cases. The FCC invoked "multiple, complementary sources of legal authority," the document said.

Broadband providers and free-market groups slammed the order, repeating many of the same criticisms they have voiced in recent weeks. In some cases, the criticisms came out minutes after the FCC released the 400-page document.

The document "only confirms our fear that the commission has gone well beyond creating enforceable open Internet rules, and has instead instituted a regulatory regime change for the Internet that will lead to years of litigation, serious collateral consequences for consumers, and ongoing market uncertainty," the National Cable and Telecommunications Association, a trade group representing large cable providers, said in a statement.

Senior Republicans in the House of Representatives and Senate also criticized the FCC order, and called on Congress to pass a six-page bill that would enact limited net neutrality protections. They also pointed to President Barack Obama's endorsement of net neutrality rules that reclassify broadband as a telecom service.

"The world finally gets to read and understand just what the White House, acting by proxy via a partisan FCC vote, has done to impose the federal government's heavy hand to regulate the Internet as a utility," Representatives Fred Upton, a Michigan Republican, Greg Walden, an Oregon Republican, and Senator John Thune, a South Dakota Republican, said in a joint statement. "We look forward to working our way through the 300-plus pages of this Washington manifesto."

Some highlights of the order:

-- Broadband providers are prohibited from blocking or throttling legal Web traffic and from accepting payment to prioritize traffic. [Page 7.]

-- The order justifies a "catch-all" standard against these potential broadband provider actions by quoting statesman Benjamin Franklin: "A little neglect may breed great mischief." [Page 9, paragraph 21.]

-- The FCC will also police future broadband practices. The commission will prohibit, on a case-by-case basis, "practices that unreasonably interfere with or unreasonably disadvantage the ability of consumers to reach the Internet content, services, and applications of their choosing or of edge providers to access consumers using the Internet." [Page 59, paragraph 135.]

-- The commission will allow broadband subscribers and Web companies to file complaints about net neutrality violations. A description of the complaint process runs from page 104 to 118.

-- Broadband access is now a regulated telecommunications service, subject to some rules governing the traditional telephone network. [Page 10, paragraph 29.]

-- The commission, however, will forebear from applying large parts of Title II of the Telecommunications Act, the portion of the law that covers regulated telecom services, to broadband providers. "This is Title II tailored for the 21st Century." [Page 12.]

-- The order does not apply the new rules to back-end interconnection agreements among ISPs, backbone providers and Web services like Netflix. It does however allow the commission to regulate those deals in the future. [Pages 10 and 11.] While the FCC has more than a decade of experience looking at last-mile broadband practices, it lacks a "similar depth of background in the Internet traffic exchange context." [Page 11, paragraph 31.]

-- Reasonable network management by broadband providers is allowed, but defined as a practice with a "primarily technical network management justification." [Page 11, paragraph 32.]

-- Mobile broadband is subject to the same net neutrality rules as fixed broadband. [Page 11, paragraph 34.]

-- Mobile data plans that allow for sponsored data, for example, music downloads not counted against a data cap, are not prohibited by the order. The commission will address mobile data caps on a case-by-case basis. [Pages 66 to 68.]

-- So-called specialized services that do not provide Internet access, including some VoIP services, online heart monitors and energy consumption sensors, are not covered by the rules. [Page 11. paragraph 35.]

Grant Gross covers technology and telecom policy in the U.S. government for The IDG News Service. Follow Grant on Twitter at GrantGross. Grant's email address is grant_gross@idg.com.

Grant Gross

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