September 17-23: Network Neutrality -- Let the Litigation Begin

September 17-23: Network Neutrality -- Let the Litigation Begin

As the summer began, we noted that the Federal Communications Commission's Open Internet/network neutrality rules were headed to the Office of Management Budget for Paperwork Reduction Act vetting. Today, as Autumn begins, the FCC published its Final Rule on Preserving the Open Internet in the Federal Register.

The Order establishes protections for broadband service to preserve and reinforce Internet freedom and openness. The FCC adopted three basic protections that are grounded in broadly accepted Internet norms, as well as the FCC's own prior decisions.

• First, transparency: fixed and mobile broadband providers must disclose the network management practices, performance characteristics, and commercial terms of their broadband services.
• Second, no blocking: fixed broadband providers may not block lawful content, applications, services, or non-harmful devices; mobile broadband providers may not block lawful Web sites, or block applications that compete with their voice or video telephony services.
• Third, no unreasonable discrimination: fixed broadband providers may not unreasonably discriminate in transmitting lawful network traffic.

Parul P. Desai, policy counsel for Consumers Union said, "The rules developed by the FCC take important steps to ensure that the Internet remains an open marketplace. When purchasing Internet service, consumers rightfully expect that they will have equal access to all that the web offers and shouldn't be held back because of industry tactics. For the first time, there will be clear rules to protect consumers and keep the Internet growing as an open, innovative environment. The rules proposed by the FCC would ensure that Internet Service Providers (ISPs) are not able to favor specific Internet content or prevent consumers from accessing a competitor's website. Key stakeholders – from consumers to small businesses, as well as religioous organizations and civil rights groups – have come out in suppport of net neutrality efforts. As opponents take aim at these important rules, we will keep fighting to ensure the Internet remains open to all."

These rules are effective November 20, 2011. Maybe.

The FCC's decision has many critics and there's a loud and extended debate about the question of governmental regulation of the Internet.

Just yesterday, Rep Marsha Blackburn (R-TN) called on the House and Senate to act on legislative efforts to block the Federal Communications Commission's open Internet/network neutrality rules, taking aim at the rules in a statement as an "Internet Iron Curtain" and a "Job-killer."

The CommLawBlog reports that Verizon is likely to take the rules to court: it already tried back in January 2011. But Verizon found itself on the outside looking in when the United States Court of Appeals for the District of Columbia circuit rejected as “premature” the lawsuit (which included MetroPCS). Federal regulations dictate that a challenge to new FCC rules must come within 10 days after a new rule is published in the Federal Register. With the publication of the rules, a Verizon spokesman said that the company would refile that suit and CommLawBlog predicts there’s also a good chance that petitions for judicial review will be filed with a number of different circuits.

Broadband providers are not the only players with problems with the FCC's rules.

Free Press Policy Director Matt Wood said, "Free Press is glad that the Net Neutrality rules are finally nearing publication. But as we've said all along, the rules passed in December are riddled with loopholes. They don't do enough to stop the phone and cable companies from dividing the Internet into fast and slow lanes, and they fail to protect wireless users from discrimination that is already occurring in the marketplace and that will only get worse. Even in their watered-down form, the rules might do some good — but that would require a vigilant FCC to carefully monitor and address complaints. This Commission’s track record suggests that it isn't inclined to take decisive action to protect consumers. While we intend to fight to make the rules stronger and to hold the FCC accountable, we believe the duty to protect Internet users lies with the FCC. We will rally against any attempt to take away or undercut the FCC's responsibility to serve the public interest."

Gigi B. Sohn, president and co-founder of Public Knowledge, said, "We are pleased that the Federal Communications Commission (FCC) rules to protect an open Internet have been published. Although we wished they could have been stronger, we believe that the rules approved by the Commission are a good start to making certain consumers and innovators are protected from the power of large telephone and cable companies to remake the Internet to suit favored partners. We are prepared to vigorously defend the FCC's rules in court and in Congress. Congress should allow the litigation to move forward to resolve intricate legal issues without political interference. We also note that the companies providing Internet access services have informally abided by a neutrality policy since the FCC acted. In that time, the Internet has not come crashing down and the government has not taken control over it."

Earlier today, Sohn's colleague, Harold Feld, published a guide to what the rule's future looks like:

Congress
Both houses of Congress have 60 business days to disapprove of the rules. If enacted, a resolution of disapproval would permanently prohibit the FCC from ever creating rules to protect an open Internet again until Congress passes a new law.

The Courts
By Monday, October 3, parties who don't want any FCC open Internet rules will file suits in the DC Circuit. Parties that don't think the rules go far enough will file in other circuits. Assuming petitions are filed in more than one circuit, Federal rules require that the courts resolve the conflict by lottery. So we should know in two weeks which court will hear the case.

At the FCC
CommLawBlog notes that some parties may go back to the FCC for reconsideration of some aspects of the Order. This could complicate matters, as the courts might be inclined to hold off on considering challenges to the new rules if any administrative reconsideration might lead to changes in the rules. But even one or more parties does petition for reconsideration, the judicial review might still proceed apace. Petitions for reconsideration are due in 30 days.

In Headlines, we'll be tracking all the news and analysis as the story develops. You can keep an eye out for updates. 'Til then, we'll see you in the Headlines.