FCC Chairman Julius Genachowski hoped that Congress would tackle the issue of net neutrality in 2010, but with Republican control of the House, and a position largely advocating against net neutrality, this didn't happen.
On December 21, 2010, the FCC approved new rules banning cable television and telephone service providers from preventing access to competitors or certain web sites such as Netflix. The rules also include some restrictions for wireless providers. However, the new rules will not prevent ISPs from charging higher fees for faster access. Republicans in Congress already announced plans to reverse the rules through legislation, and the rule face significant court challenges.
The net neutrality regulations were narrowly approved by the FCC. Two Republican commissioners voted against the rules, with three Democrat commissioners voting in favor of the rules. With a Republican majority now controlling the House after the 2010 elections, this new legal challenge will certainly set the stage for a political showdown in Congress. President Barack Obama wholeheartedly supported the FCC action, and said the following when they were passed: "This decision is an important component of our overall strategy to advance American innovation, economic growth, and job creation."
On September 23, 2011 the FCC released its final net neutrality rules for preserving a free and open Internet. These rules state that providers must be transparent in network management practices, not block lawful content, and prohibit unreasonable discrimination in transmitting lawful network traffic. The new rules have recently been published in the Federal Register, and are slated to take effect in November.
The regulations are slightly different for fixed and mobile networks. Providers of fixed broadband services cannot block lawful content or services, nor can they discriminate against any network traffic – meaning they can’t deliberately slow down traffic for heavy Internet users. Mobile networks can still discriminate against certain apps, but also can’t block lawful websites or block applications that compete with their own services. The new rules also call for greater transparency from both types of broadband providers. The FCC says all broadband providers have to “disclose the network management practices, performance characteristics, and commercial terms of their broadband services.”
Providers are also lining up to oppose other legislation currently in Congress. The Stop Online Piracy Act (SOPA)is opposed by many providers because of the way the bill punishes Internet service providers for permitting pirated content to remain on websites they host.
Now that the regulations have been published, the lawsuit challenges have already been filed. The surprising part of the initial lawsuit challenges is not that the regulations would be challenged – it is who challenged them.
The lawsuit filed by Verizon was expected, and was filed shortly after the initial FCC ruling. The Verizon suit was filed in the Court of Appeals for the District of Columbia Circuit, which is the same court which ruled against the FCC in the Comcast case. The attorney representing Verizon is Helgi Walker, who was the same attorney who was successful in the Comcast case. Verizon even emphasizes that the Comcast case is the basis for their lawsuit.
The Verizon Court filing states:
"The net neutrality rules are arbitrary, capricious, an abuse of discretion of the Administrative Procedure Act, contrary to constitutional right and otherwise contrary to law."
In a statement released by Verizon, they added:
"We are deeply concerned by the FCC's assertion of broad authority for sweeping new regulation of broadband networks and the Internet itself. We believe this assertion of authority goes well beyond any authority provided by Congress and creates uncertainty for the communications industry, innovators, investors, and consumers."National Broadband Issues of the Obama Administration
In addition to the Verizon suite, a media reform group called Free Press filed a lawsuit on September 28, 2011 in the First Circuit Court of Appeals in Boston. The organization is wants to challenge the “arbitrary nature of rule provisions” that provide less protection for mobile wireless Internet access than they do for wired connections as part of the FCC’s net neutrality proposal.
According to Free Press Policy Director Matt Wood, in a prepared statement, "When the FCC first proposed the Open Internet rules, they came with the understanding that there is only one Internet, no matter how people choose to reach it.”
Although the political climate in Washington means net neutrality will not be legislated this year, as the issue winds it way through the court system, it will undoubtedly be followed with great interest by members of both parties.