• by Wendy Davis  @wendyndavis, December 21, 2010

A deeply divided Federal Communications Commission voted 3-2 on Tuesday to enact net neutrality rules that prohibit wireline providers from blocking or degrading traffic.

The FCC's vote split along party lines with the Democrats supporting the order as necessary to preserve the Web's historic openness to consumers, engineers and innovators, while the two Republicans dissented from the order, arguing both that regulation is unnecessary and that the FCC had exceeded its authority.

FCC Chairman Julius Genachowski said in his prepared remarks that the rules were needed to preserve the Internet's historic openness. "Today, for the first time, we are adopting rules to preserve basic Internet values," he said. "For the first time, we'll have enforceable rules of the road to preserve Internet freedom and openness."

The exact text of the rules has not yet been made available. But Genachowski described the order as banning wireline providers from engaging in "unreasonable discrimination," which he said can include paid prioritization agreements for fast-lane treatment for certain types of content. "We are making clear that we are not approving so-called 'pay for priority' arrangements involving fast lanes for some companies but not others," he said. "The order states that as a general rule such arrangements won't satisfy the no-unreasonable-discrimination standard -- because it simply isn't consistent with an open Internet for broadband providers to skew the marketplace by favoring one idea or application or service over another by selectively prioritizing Internet traffic."

The order also prohibits wireless providers from blocking sites or competing applications, but doesn't prohibit wireless carriers from creating fast lanes for companies that pay extra.

Democrats Michael Copps and Mignon Clyburn voted with Genachowski, though both expressed the view that neutrality rules should apply equally to mobile providers. Copps also said he unsuccessfully urged the FCC to reclassify broadband as a telecommunications service, subject to common carrier regulations.

Republican Commissioners Robert McDowell and Meredith Attwell Baker sharply criticized the new rules.

"Not only is today the winter solstice, the darkest day of the year, but it marks one of the darkest days in recent FCC history," McDowell said in his prepared dissent. He said he opposed regulating the Web at this time for several reasons, including that "nothing is broken in the Internet access market that needs fixing."

Baker added that the FCC's order focuses on preserving the status quo, which, she said, will "distort tomorrow's Internet."

Both McDowell and Baker said that the new regulations are vulnerable to a court challenge, given that an appellate court ruled earlier this year that the FCC had no authority to enforce neutrality principles because broadband access is regulated as an "information service" rather than a telecommunications service.

Some net neutrality advocates criticized the rules as weak and loophole-filled, but others said that Tuesday's vote marked a good first step.

Free Press said it was "deeply disappointed" with the rules, which would allow wireless providers to prioritize traffic.

Public Knowledge's president Gigi Sohn, however, called the order "a step forward, but not as large a step as it could have been."

Senate Commerce Committee Chairman Jay Rockefeller (D-W.Va.) said he has "real reservations about treating wireless broadband differently from wired broadband," but nonetheless called the FCC's vote "a meaningful step forward."

Rep. Ed Markey (D-Mass.) likewise said the order "falls short" for treating wireless and wireline broadband differently. "In some areas of the Order, the FCC gets high letter grades, but in others, the agency gets an incomplete," he said in a statement.

Comcast, meanwhile, which was sanctioned by the FCC in 2008 for violating neutrality principles by throttling peer-to-peer traffic, praised the rules as a "workable compromise." Executive President David Cohen said in a blog post that the rules "generally appear intended to strike a workable balance between the needs of the marketplace for certainty and everyone's desire that Internet openness be preserved."