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FCC Protects Net Neutrality, But Legal Challenge Likely

Paresh Dave, Jacob Chung |
December 21, 2010 | 10:10 a.m. PST

Executive Producer, Staff Reporter

The FCC ordered Tuesday that Internet service providers such as Time Warner, Comcast and Verizon cannot slow down access to any lawful website.

Those who offer Internet service on mobile phones--such as AT&T, Verizon Wireless and Sprint--may, however, discriminate against different websites, perhaps giving priority to someone loading Google on his or her cell phone but offering a long loading time for someone try to pull up Yahoo.

The FCC's vote is the first major step in locking in net neutrality--a widely-followed Internet policy that isn't actually law. The debate, in a broad scope, refers to the principle of an open and unbiased Internet. The concept is to provide access to the Internet without any blocking, throttling, or favoring of content being passed through the networks by the Internet service providers.

The order, though, is likely to face a quick legal challenge from Internet service providers who object to the government intrusion into their industry. In a case decided earlier this year, a federal court ruled the FCC does not really have the power to regulate Internet access. Congress would be able to explicity grant that power, but the Republican take-over of the House next year makes such a resolution unlikely.

Genachowski has labeled the directive, which won't become public for several days, as a framework that will be slowly built upon for many years.

Although many thought the discussion benched for future consideration, earlier this month commission Chairman Julius Genachowski released a statement that addressed some key points in the development of the proposal. In it he added a few compromises in hopes to mitigate harsh opposition from those in the Internet industry like AT&T  and Verizon. Genachowski, a Democrat, believes the new regulations will spur investment in the market, but the FCC's two Republican commissioners said the opposite would happen.

The two other Democratic commissioners, Michael Copps and Mignon Clyburn, supported Genachowski's order, but both held reservations that the policy may be too lax in its approach to enforcing regulations. Neither supported the exception for mobile Internet service providers.

Another compromise allows content providers--say a YouTube or a Facebook--to pay for their websites to load faster on wired networks. Other proponents of the net neutrality seem to agree with the Copps and Clyburn. Although the purpose of the compromises were to gain supporters of the net neutrality, it since has been receiving criticism from both sides.

John Borthwick CEO of Betaworks stated on TechCrunch.com that, “The arguments that wireless should be treated separately from wireline are in my mind specious at best. Despite the fact that wireless network providers manage the network differently than wireline providers (given a need to share a limited resource among varying densities of users), wireless providers, like wireline providers, should not have the ability to discriminate against specific content, sites or applications.” 

The two Republican commissioners, Meredith Baker and Robert McDowel rejected the policy. In a recent Wall Street Journal article, Commissioner McDowell criticized the necessity of a net neutrality policy in saying, “Nothing is broken that needs fixing, however. The Internet has been open and freedom-enhancing since it was spun off from a government research project in the early 1990s.” McDowell went on to say that the commission is overreaching its authority by trying to reinforce a policy spurred on by “quixotic pressure” and not consumer protection. Recent court rulings regarding Comcast would support McDowell's accusations.

Facing criticism from both sides, Genachowski said in a recent statement to the public, “I reject both extremes in favor of a strong and sensible framework--one that protects Internet freedom and openness and promotes robust innovation and investment.” 


Reach reporter Jacob Chung here.



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