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FCC's net-neut rules now official

Let the lawsuits begin

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The US Federal Communications Commission's open-internet rules have been published by the Federal Register, and they're set to go into effect on November 20 of this year.

The publication of the densely worded, profusely footnoted 42-page document makes it official: the FCC has come out strongly for what it deems to be "Preserving the Open Internet".

Luckily for those of us who might be intimidated by reams of federal word-wrangling, the FCC also provides a simple three-step summary of the new rules, based, it says, on "three basic protections that are grounded in broadly accepted Internet norms", as follows:

  • "First, transparency: fixed and mobile broadband providers must disclose the network management practices, performance characteristics, and commercial terms of their broadband services.
  • "Second, no blocking: fixed broadband providers may not block lawful content, applications, services, or non-harmful devices; mobile broadband providers may not block lawful Web sites, or block applications that compete with their voice or video telephony services.
  • "Third, no unreasonable discrimination: fixed broadband providers may not unreasonably discriminate in transmitting lawful network traffic."

This trio may ring a bell: they're the same gentle strictures that the FCC voted to approve last December. Notice that they still maintain a distinction between fixed – wired – broadband and mobile – wireless – broadband, with mobile getting less regulation.

That December vote, by the way, was on strict party lines. The two Democratic commissioners, Michael Copps and Mignon Clyburn, voted for the plan and the two Republicans, Robert McDowell and Meredith Baker, voted against it. FCC chairman Julius Genachowski, an Obama appointee, broke the tie.

Less than five months after that vote, by the way, Baker resigned from the FCC and became a staff lobbyist for one of the corporations that she had been charged with regulating: Comcast. We've seen no reports as to whether Washington's famous administration-to-corporation revolving door swatted her on the behind as she left the FCC.

The difference between the "Preserving the Open Internet" rules as voted on and as published is chiefly that now that they have been published, they're official. And being official, they're now open to legal challenges.

And legal challenges are sure to come fast and furious, as both wired and wireless providers resist any government regulations that might crimp their income streams, however slightly. And since Genachowski decided to ground the rules in what he called his "Third Way" approach, which uses a weak "ancillary" argument, rather than firmly reclassifying internet communications as telecommunications, a strategy that would have given the rules a stronger basis, it's likely that anti-regulation lawsuits will have a good hand to play.

Reclassifying broadband using the stronger approach, however, may have been a non-starter in the current "government is evil, to hell with regulations" stateside climate. Even the watered-down rules in "Preserving the Open Internet" have met with a firestorm of criticism, including one "Disapproval" resolution passed in the House and another working its way through the Senate.

One lawsuit that's well-nigh certain to resurface is the one brought by Verizon and MetroPCS, which was tossed out of court by a three-judge appelate panel this April. The panel didn't rule against Verizon and MetroPCDS on the merits of the case, it simply said that since the rules weren't yet official, there was no basis for a suit.

The rules are now official. Let the lawsuits begin. ®

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