FCC releases net neutrality regulations; opponents expected to sue

FCC Chairman Tom Wheeler, center, is flanked by Commissioners Ajit Pai, left, Mignon Clyburn, Jessica Rosenworcel and Michael O'Rielly during a hearing and vote on proposed net neutrality rules in Washington.
(Pablo Martinez Monsivais / Associated Press)

Federal regulators released details of the new rules governing Internet traffic in a 400-page tome that also lays out the justification for tough measures and gives critics the fodder for their expected court appeals.

The Federal Communications Commission released the wording of net neutrality rules it approved two weeks ago, but the regulations themselves didn’t take up much room — only eight pages.

Most of the order contains explanations and rationale for the new regulations. The last 87 pages are statements from the commissioners, including a 64-page dissent from Republican Commissioner Ajit Pai.

The release of the document was highly anticipated, though there was little that was new. The agency will take a more active role in ensuring that the flow of Internet traffic remains unhindered and will require broadband providers act in a “just and reasonable” manner.

In releasing the details Thursday, the FCC essentially started the clock on implementing the new rules of the road for the Internet and on efforts by opponents to stop them.


Lawyers for industry trade groups and broadband service providers, such as AT&T Inc. and Verizon Communications Inc., began poring over the document posted on the FCC’s website Thursday.

“It will be challenged,” predicted Michael Pryor, a special counsel in the regulatory communications practice at the Cooley law firm in Washington. “I think the question is how many people end up challenging it.”

Twice before, the industry has won court orders tossing out similar rules.

Lawmakers also are reviewing the details. Three key Republicans are pushing legislation that would take a more limited approach to ensuring the unfettered flow of content on the Internet. Some Democrats have expressed interest in working with them because legislation would provide more certainty than a regulatory decision.

“Our six-page draft legislation could prevent abuses and promote robust Internet investment — all without the overreach included in the FCC’s order,” Sen. John Thune (R-S.D.), Rep. Fred Upton (R-Mich.) and Rep. Greg Walden (R-Ore.) said in a joint statement.

All five FCC members are scheduled to testify Wednesday before the Senate Commerce Committee, which Thune chairs.

The Democrat-controlled FCC approved the regulations Feb. 26 in a party-line 3-2 vote after President Obama publicly urged them to do so.

The main provisions prohibit broadband providers from blocking or slowing delivery of any lawful content through their networks for any reason other than “reasonable network management” and ban so-called paid prioritization, the sale of faster delivery.

The FCC would waive the ban on paid prioritization if a company could show that it “would provide some significant public interest benefit and would not harm the open nature of the Internet.”

“The order uses every tool in the commission’s toolbox to make sure the Internet stays fair, fast and open for all Americans, while ensuring investment and innovation can flourish,” the FCC said in releasing the full order.

In the next few weeks, the order will be published in the Federal Register and nearly all the provisions will take effect 60 days after that unless a court steps in with a preliminary injunction.

FCC officials said the length of the order, which included 1,950 footnotes, was partly in response to many of the arguments made in the nearly 4 million public comments the agency received on the issue last year.

But another reason for the extensive detail was to offer the legal and factual basis for the regulations in anticipation of a legal challenge, FCC officials said.

“Clearly it is very much written with litigation in mind,” Pryor said.

What has made this set of net neutrality rules so much more controversial than past efforts was the FCC’s major policy shift in treating broadband providers as more highly regulated telecommunications services. That decision was aimed at addressing a major flaw in the 2010 net neutrality rules that led federal judges to overturn them.

Critics slammed the FCC for reclassifying broadband as a utility even though FCC Chairman Tom Wheeler has promised a light approach that avoids rate regulation and many other heavy-handed rules.

The FCC also decided for the first time to apply net neutrality regulations to wireless broadband. The agency does that by expanding the definition of conventional phone service to include Internet addresses as well as phone numbers, according to the order.

That decision could have major implications for telecommunications regulation as the types of Internet-connected devices expand, said Robert McDowell, a former Republican FCC commissioner who voted against the 2010 net neutrality regulations.

“As we see the Internet of everything starting to explode, it’s more than just your computer, your tablet, your smartphone. It’s going to be your car, your dishwasher and all sorts of things,” said McDowell, a senior fellow at the Hudson Institute think tank. “This is going to have an unfathomable number of consequences.”

AT&T hinted at a likely legal challenge of the regulations as it warned that the release of the order “begins a period of uncertainty that will damage broadband investment in the United States.”

“Ultimately, though, we are confident the issue will be resolved by bipartisan action by Congress or a future FCC or by the courts,” said Jim Cicconi, AT&T’s senior executive vice president of external and legislative affairs.

The National Cable and Telecommunications Assn. trade group also warned of “years of litigation” that would cause “serious collateral consequences for consumers, and ongoing market uncertainty that will slow America’s quest to advance broadband deployment and adoption.”

Matt Wood, policy director of Free Press, a digital rights group that strongly supported tough net neutrality rules, said he hoped that the public release of the details would end “fear-mongering” by opponents of the FCC’s action.

“This is not a government takeover of the Internet or an onerous utility-style regulation,” he said.