It took four million public comments and a pitched political fight invoking everything from civil rights to Presidential power, but the FCC has finally passed new rules on net neutrality.
On Thursday, the FCC voted to reclassify broadband internet providers as “common carriers,” as part of a new order that will forbid ISPs from slowing down or speeding up web traffic, or cutting any deals with websites to offer them special service.
The outcome of the vote, which took place along 3-2 partisan lines, was widely expected, but the process served to provide additional details about how exactly the new internet rules will apply.
While the specific text of the regulations will not be posted for a week or two, and the FCC issued only a short summary, officials’ comments suggested that the FCC will carry out one reclassification rather than two.
Earlier reports had suggested that the agency was considering conducting a separate legal process for imposing net neutrality on the so-called “middle mile” of the internet — where ISPs connect with websites (as opposed to ISPs connecting to consumers).
But the FCC appears to have concluded that a single legal step will suffice to ensure that ISPs can’t unreasonably throttle sites like Netflix in order to extract a payment.
The agency also confirmed that the rules would, for the first time, apply to mobile internet services. In addition, it stated that it would it exempt broadband providers from rate regulations and other burdensome obligations that come with common carrier reclassification.
The five commissioners are holding a press conference right after the hearing, and I’ll update with any new details and clarifications (see below).
Bright lines and “general conduct” — how it will work
In a press conference following the vote, Wheeler and FCC staff provided additional details about how the rules will work in practice — though not to the full satisfaction of everyone in the hearing.
The two biggest issues concern interconnection (ie if Verizon can charge Netflix not to impede its stream), and so-called zero rating. The latter term describes situations where an ISP or phone carrier decides certain apps or services, such as music, don’t count against a customer’s monthly data cap.
In both situations, the FCC explained the three new bright line rules — no blocking, no throttling, no fast lanes — do not apply.
Instead, the agency will use a catch-all general conduct provision to stop practices that the FCC deems “unjust” and “unreasonable” under the common carrier law.
FCC staff added that this system does not mean that ISP’s will have to seek permission to charge for interconnection, or to offer free data plans. But all the same, the agency will step in if companies have gone too far, and will investigate complaints.
The upshot is that my colleague Stacey Higginbotham appears to have been correct when she suggested earlier this month that the general conduct rule could serve as a big loophole in an otherwise sound set of rules.
The bottom line is that the new rules (unless they’re upended by a court or Congress) will ensure ISP’s like Verizon and Comcast can’t offer fast lanes, or direct consumers to one website over another. Also, the FCC has now asserted clear authority for the first time over interconnection deals and zero rating — but it is far from clear how it will use that authority.
Civil rights and socialism
In a reflection of how politicized the net neutrality debate has become, some of the commissioners embarked on long soliloquies to equate the vote with larger narratives of their parties.
Democratic Commissioner Mignon Clyburn suggested that the new net neutrality rules served to further broader goals of justice and civil rights.
Meanwhile, her two Republican counterparts characterized the new rules as a “radical departure” that would lead the government to cripple the internet.
Commissioner Ajit Pai, in particular, spoke at unusual length to repeat GOP talking points that the reclassification decision was part of a larger, sinister agenda by President Obama to usurp power from citizens.
Chairman Tom Wheeler dismissed this rhetoric, however, saying, “This plan is no more a plan to regulate the internet than the First Amendment is a plan to regulate free speech.”
The preamble to the presentation included an address from the CEO of Etsy, and from Sir Tim Berners-Lee, the inventor of the World Wide Web, in support of the new rules.
Here’s a guide to how the process unfolded today, and the upcoming court battles.
This story was updated at 2:45pm ET with details of the proposal.