updated 01:05 pm EDT, Thu May 6, 2010
FCC proposes using some tougher neutrality rules
The FCC today proposed a unique reclassification of Internet access that would step up some of the net neutrality requirements for ISPs in the US. The "third way" would subject broadband Internet access to certain sections of the FCC's Title II provisions that would prevent "unreasonable" denials of network traffic and let the FCC protect against violations. The guidelines would also require that the FCC promote policies that expand coverage to all parts of the US, protect confidential information and make services accessible to the disabled.
The terms would apply to both wired services like cable and fiber optic as well as wireless access, putting cellular carriers on the same level. It would also be harder to overturn. Although this could include restricting tighter regulation, it would also prevent states from setting individual policies that are significantly out of step with the federal government. It would still include some flexibility if the FCC needed to exert authority under the tougher Title II conditions.
FCC officials went out of their way in the proposal to assuage carriers, noting that its suggested changes wouldn't include rate regulation and wholesale network access rules they have opposed in the past.
Most of the FCC's justification for the change comes from a reinterpretation of how Internet access works. As it was previously treated like an information service alone, it was only allowed to go under softer Title I provisions. Under the proposal, Internet access would be considered both a telecom service and an information service and would have to be governed by a mix of the two rules.
The new approach wouldn't address concerns raised by some broadband access advocates. Many have argued for open access to carriers' networks to let smaller Internet providers get started without having to build entirely separate networks. Without such rules, incumbents have often gone unchallenged as the cost of building a new network is often too expensive.
However, the move has already been interpreted as potentially dangerous by Internet providers, many of whom have objected to any kind of tougher FCC regulation and are believed to have been behind a Senator John McCain bill that would have banned any FCC regulation of the Internet. Comcast in a response said it was "disappointed" with the rule but said it would "work constructively" with the FCC. It appreciated the efforts to avoid obvious objections but insisted that the existing Title I steps were enough to keep the provider honest.
The FCC has disagreed with this last claim and used its recent loss to Comcast in court as proof. As it didn't have legal authority, the FCC wouldn't have had the option of stopping Comcast from blocking and throttling BitTorrent on its network. Comcast is currently following a more platform-neutral approach to its network but is doing so on a voluntary level.
With the new measures, neutrality would not only be enforced on landlines but might prevent cellular providers like AT&T and Verizon from blocking streaming video or certain kinds of VoIP apps that they have often banned either due to congestion worries or due to competition. Some of the FCC's authority has yet to be tested, however.