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Summary:

The Federal Communications Commission’s controversial net neutrality rules have been officially filed with the Federal Register and will go into effect Nov. 20. But it’s expected to prompt new legal challenges from carriers who question the FCC’s legal authority to implement the rules.

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The Federal Communications Commission’s controversial net neutrality rules have been officially filed with the Federal Register and will go into effect Nov. 20. But don’t expect the rules to go unchallenged.

The FCC’s “Rules on Preserving the Open Internet” are expected to prompt lawsuits, including some from Verizon and MetroPCS, both of which were rebuffed earlier this year when they filed suit against the rules. The U.S. Court of Appeals for the D.C. Circuit tossed cases from the carriers in April, saying the actions were premature because the rules had not been finalized and filed in the Federal Register.

Now that the rules are set to go into effect, it’s likely the lawsuits will be revived. A Verizon representative told the Washington Post that it doesn’t have a firm schedule for when it plans to file a lawsuit, but I imagine it’s only a matter of time.

If you recall, the rules were narrowly passsed in December by a 3-2 margin, initiating a set of compromise guidelines for protecting an open Internet. The rules work to protect the current state of the Internet, calling for transparency of network management techniques and no blocking of content or unreasonable discrimination of traffic on fixed broadband networks. And yet, the rules don’t set any protections on mobile access to the Internet. Here’s the major components summed up in the Federal Register filing:

  • 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.

A lawsuit by broadband providers will help establish whether or not the FCC is on sound legal ground as it pushes these new rules. Verizon has previously argued in its lawsuit that the FCC doesn’t have the authority to regulate broadband. The FCC could have reclassified broadband providers as common carriers, a move that would better established its authority, but it would have faced even more opposition from ISPs. The agency instead decided to forge the new rules under its current jurisdiction. Now, the FCC will have to defend its right to install these new rules in court.

As my colleague Stacey pointed out when Verizon first filed its lawsuit to upend the FCC’s rules, a lot will depend on which court hears the case. Verizon originally filed in the very conservative D.C. Appeals court, which has taken a dim view to the FCC in the past. But if the case moves to a court more friendly to the FCC, the rules have a better chance of surviving.

The expected lawsuits will just be the latest test for the FCC’s long-pursued net neutrality rules. Though the rules give some clarity and protections to Internet providers, application makers and consumers, it’s such a compromise that it still leaves many unsatisfied. It seems to open the door for more tiered pricing, too. And with the Interent going mobile, it leaves a lot of big questions about what kind of access users will enjoy from mobile devices. At this point, I have to wonder if these rules ever go into effect.

Post and thumbnail photos courtesy of Flickr user legoguy

  1. Verizon has previously argued in its lawsuit that the FCC doesn’t have the authority to regulate broadband, which prevailed at the appellate court
    FIFY!

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