The FCC’s Contentious Net Neutrality Rules Are Voted Into A Comment Period

This morning, proposed rules regarding net neutrality passed the FCC on a vote of three to two, as expected. We now enter a comment period in which the “Protecting and Promoting the Open Internet” Notice of Proposed Rulemaking will be debated.

Keep in mind that the proposed rules are not final. The FCC is seeking input for 60 days — that’s the figure I’ve seen reported a number of times, a period that will be followed by 57 days of reply — on how best to proceed to protect the Internet, including the potential to regulate Internet as a utility. We still haven’t gotten our hands on the text of the proposed rules, but FCC Chairman Wheeler stated that, “nothing in this proposal, by the way, authorizes paid prioritization.” That would be a change, compared to previously leaked efforts.

Given our still limited knowledge, I think that it is most fair to say that the proposed rules would fact allow for some sort of paid prioritization, but ban blocking and slowing. Here’s the key quote, as transcribed by the Washington Post:

“If a network operator slowed the speed of service below that which the consumer bought, it would be commercially unreasonable and therefore prohibited. If the network operator blocked access to lawful content, it would violate our no-blocking rule and therefore be doubly prohibited.”

Assenting FCC Commissioners Clyburn and Rosenworcel voted with Wheeler to move forward with the notice of proposed rule making. Commissioners Ajit Pai and Michael O’Reilly voted against the proposal, citing congressional action as a better approach in the case of the former, and a lack of proven ills in the latter.

The proposal includes two new rules that Chairman Wheeler indicated will help protect consumers: The forcing of ISPs to self-report any agreement that changes their relationship to either content companies, or consumers, and the establishment of an advocate for the public, who could take comment and complaint up on their behalf.

Peering, another component of this issue, will be taken up later. Chairman Wheeler said it is an issue “better addressed separately.”

What next? We need to get our hands on the full proposed rule set, dig through it, and see where we stand. Chairman Wheeler spoke forcefully about ensuring that the Internet is not bifurcated into a have- and have-not situation. However, given that it still appears that there would be some space open for some content companies to pay for faster service, that still feels untrue.

Specifically, the FCC is “seeking input” on both Section 706 of the Telecommunications Act of 1996, and Title II as to the benefits of each as a source of regulatory authority.

Those in favor of more stringent net neutrality regulation suffered a setback today, but perhaps one that is still salvageable provided that enough pushback materializes against any proposal that allows for incumbent companies to pay for better service from ISPs.