Reaction To FCC Vote Anything But Neutral

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They don't often have the same opinion, but net neutrality advocates and Internet service providers are in agreement that the Federal Communications Commission has created years of legal uncertainty by voting to regulate broadband carriers.

The FCC still hasn't released the new rules, but officials have said that the order bans wireline providers from blocking or degrading content and from engaging in "unreasonable discrimination." Chairman Julius Genachowski said that unreasonable discrimination can include paid prioritization, or fast-lane treatment for companies that pay extra, but the extent of that restriction isn't yet clear.

The order also bans wireless providers fom blocking sites or applications that compete, but doesn't impose a no-unreasonable-discrimination mandate on wireless carriers.

Even though the substance of the rules offers wireless carriers a great deal of leeway, some Internet service providers still condemned the decision. They argue that the FCC's order could result in years of litigation because it's not clear that the agency is legally empowered to enact neutrality regulations.

Verizon wrote on its blog that the FCC's "assertion of authority without solid statutory underpinnings will yield continued uncertainty for industry, innovators, and investors."

The advocacy group Media Access Project, which criticized the rules as "riddled with loopholes," also said that the FCC's decision to proceed without first reclassifying broadband access as a telecommunications service "did not improve the chances for these rules in court, nor clarify the agency's authority to promote broadband deployment and adoption by underserved communities and populations."

In addition, the two Republican commissioners also said that the rules might be shot down in court due to questions about the FCC's authority.

To be sure, not everyone criticized the FCC's move. Comcast, for one, said the FCC's order marked a "workable compromise." Some neutrality advocates also said that the FCC's order is a good start, though they would like to see wireless neutrality rules as well.

Still, many observers believe that the FCC's authority for its order is questionable, thanks to a decision made during the previous administration to categorize broadband as an "information service," subject to Title I of the Telecommunications Act. One reason why that order could prove problematic for the FCC now is that the agency has more power to regulate Title II telecommunications services than Title I information services.

In fact, a prior attempt by the FCC to regulate broadband as a Title I service has already been shot down in court. In 2008, the FCC attempted to sanction Comcast for violating neutrality principles by throttling peer-to-peer traffic, but an appellate court vacated the move. That court specifically ruled that the FCC lacked authority to enforce neutrality principles because broadband is considered an information service.

Given the ruling in the Comcast case, many neutrality advocates had urged the FCC to reclassify broadband -- or at least Internet access -- as a Title II service before attempting to enact rules. Earlier this year, Genachowski recommended doing so, but apparently retreated from that proposal.

This week, Democratic Commissioner Michael Copps specifically expressed his disappointment that the FCC didn't take that route. "I pushed -- pushed as hard as I could -- to get broadband telecommunications back where they belonged, under Title II of our enabling statute," he said Tuesday in his prepared concurrence. "I continue to believe that a reassertion of our Title II authority would have provided the surest foundation for future Commission action," he added, noting that the FCC could still decide to reclassify broadband in the future.

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