Net neutrality still faces political, legal hurdles
The FCC headquarters in Washington, D.C.
(Credit: FCC)Net neutrality supporters may be celebrating the Federal Communications Commission's unanimous vote Thursday to begin developing open Internet regulation, but the battle is far from over as the yet-to-be-written regulation is already facing Congressional opposition and will also likely be challenged in court.
Votes at the FCC for the proposal to get the ball rolling on new rules to protect an open Internet hadn't even been cast when Senator John McCain (R-Ariz.) introduced legislation on Thursday morning that would block the agency from regulating the Internet. McCain said that Net neutrality rules would stifle innovation and hurt the job market.
"Today I'm pleased to introduce the Internet Freedom Act of 2009 that will keep the Internet free from government control and regulation," McCain said in a statement. "It will allow for continued innovation that will in turn create more high-paying jobs for the millions of Americans who are out of work or seeking new employment. Keeping businesses free from oppressive regulations is the best stimulus for the current economy."
The FCC voted unanimously Thursday on a proposal that would start the process for creating regulation that will keep the Internet open. The proposal itself uses the FCC's open Internet principles as a foundation and would forbid network operators from restricting access to lawful Internet content, applications, and services. It would also require network providers to allow customers to attach nonharmful devices to the network.
Two additional principles were added, which would prevent network providers from discriminating against particular Internet content or applications, while at the same time allowing for reasonable network management. Internet access providers would also have to be transparent about the network management practices they implement.
All five commissioners voted in favor of advancing the rule-making process with the two Republicans, Meredith Attwell Baker and Robert McDowell, dissenting in part.
Ongoing debate
The so-called Net neutrality debate has pitted Internet application companies, such as Google, Facebook and Skype, against big broadband providers, such as AT&T, Verizon Communications, and Comcast. The network operators argue regulation will stifle innovation, while the Internet companies say an unfettered network is necessary to encourage innovation.
Congress has been interested off and on in this issue for about three years. But it has never gained much support, and at least five bills that would enact Net neutrality regulation have failed.
The issue seemed to die out completely after the FCC publicly admonished Comcast for violating its open Internet principles, which were adopted in 2005. The official slap on the wrist and the public outcry resulted in Comcast changing its practices. For many in the industry, it seemed the FCC's handling of the situation was sufficient.
The issue was revived last year during the U.S. presidential campaign when then-candidate Barack Obama said he'd support Net neutrality regulation and laws. Now that he is president, his supporters are holding him to his promise.
In July, Rep. Edward Markey (D-Mass.), a longstanding proponent of Net neutrality, along with Rep. Anna Eshoo (D-Calif.) introduced H.R. 3458, the Internet Freedom Preservation Act.
Markey, a senior member and former chairman of the Energy and Commerce Committee's Communications, Technology and the Internet Subcommittee, applauded the FCC's vote on Thursday and said it was an historic step toward preserving "the unfettered and open nature of the Internet."
"These proposed rules are an excellent complement to the Net neutrality legislation that I introduced in Congress earlier this year along with Rep. Anna Eshoo (D-Calif.)," Markey said in a statement. "As the commission's process moves forward, I look forward to working with the FCC and my colleagues in Congress on this vitally important issue."
It's unclear whether either McCain's or Markey's bill would actually pass. Democrats, who have typically supported Net neutrality rules, have seen a break in the ranks with more than 70 House Democrats recently expressing concern over Net neutrality regulations to the FCC.
But there are still supporters for open Internet rules. In September, Chairman of the House Energy & Commerce Committee Henry Waxman (D-Calif.) said he had added himself as a co-sponsor to Markey's bill. Senators Byron Dorgan, (D-ND) and Olympia Snowe (R-Maine) issued a joint statement Thursday reiterating support for Net neutrality rules. And Congresswoman Donna F. Edwards (D-MD) also issued a statement supporting the FCC's Net neutrality proposal.
With Congress tackling much bigger issues, such as the economy, health care, and the wars in Iraq and Afghanistan, it's hard to imagine that Net neutrality legislation would be a top legislative priority.
The previous FCC under Chairman Kevin Martin was not interested in creating Net neutrality regulation. But as the new FCC moves forward with its proposal to develop regulations, there's a question over whether the agency even has the authority to regulate the Internet.
At the hearing Thursday, Commissioner McDowell said he was dissenting in part because he didn't feel the FCC had legal authority to create such rules.
"I do not share the majority's view that the Internet is showing breaks and cracks, nor do I believe that the government is the best tool to fix it," he said. "I also disagree with the premise that the commission has the legal authority to regulate Internet network management as proposed."
Even Chairman Julius Genachowski, who introduced the proposal, pointed to the legal gray area that exists when it comes to enacting and enforcing Internet regulation. He said that the commission is faced with a "dangerous combination of an uncertain legal framework with ongoing as well as emerging challenges to a free and open Internet."
But he said the consequences of doing nothing are too great. And "fair and reasonable rules of the road" can't wait.
Still, without any clear direction from Congress, the rules that will result from the FCC's lengthy proposed rule making process will likely be challenged in court.
FCC role in question
The FCC is already defending itself against Comcast's appeal. Comcast is arguing that when the FCC admonished the company for violating its open Internet principles, they were not considered official rules, and therefore the FCC was not able to enforce them. Comcast also argues that the FCC wouldn't need to create official regulation if the principles were enforceable.
But the FCC says that it does have the authority to enforce its policy principles and that the new rules will simply codify these principles.
The outcome of this case is very important, because if the court rules in favor of the FCC, it could add more weight to the FCC's overall argument that it has authority regulate the Internet. And if the court rules in favor of Comcast, and depending on how the decision is written, Net neutrality opponents could use the decision to bolster their argument that the FCC does not have the legal authority to regulate the Internet.
In either case, a clear statute from Congress could settle the matter once and for all.
Marguerite Reardon has been a CNET News reporter since 2004, covering cell phone services, broadband, citywide Wi-Fi, the Net neutrality debate, as well as the ongoing consolidation of the phone companies. E-mail Maggie. 
Are you for real woman?? Please explain to me WHERE government has taken over we now have MORE freedom. You statists are really clueless about how the world works hey.
WAR IS PEACE, FREEDOM IS SLAVERY, and IGNORANCE IS STRENGTH.
Government dictates, by definition, are not optional. You can't simply walk away when politicians interfere with your life.
Is it really any surprise that the most Command-and-Control oriented congress critters are the ones pushing this so hard? It's yet another power grab by the Anointed Ones who want Chicago-style Rule over everything they can get their hands on.
The government invented the Internet. With the invention of the WWW part it took off. Private companies soon developed and expanded it, then they soon started blocking ports, and access, then they introduced data caps and the march goes on.
It seems to me that the government fostered an open environment that the companies soon started shutting down as best served them. Most of that is without full disclosure to customers. My ISP cableone has slipped in data caps, blocked ports, and dropped newsfeeds, and such over time. They even block my outgoing mail wiht their own spam filter. It can make discussing business difficult, and since I can't access my own email server (blocked port) I can't go to plan B.
I wonder what kind of innovation McCain is talking about. US telecoms he is trying to protect are not exactly known for it. Due to them (and the lack of competition between them), US has less broadband connections per capita than ex-Soviet Latvia.
It is software companies that innovate on the Internet, and because they actually do innovate, they all for Net Neutrality and its open rules. I think it is time for McCain to retire somewhere so that we so not have to listen to him again.
The only fair thing to do is for the telcos to offer the internet as we know it and then another limited service..lets call it webmail for example. This service only allows for web and mail traffic (p 80, 443, 25, 110, 143, 465, 587, 993 for ex). It could be more protocols just using these 2 as an example to keep it simple. Anyway doing this way the customer knows upfront he is not getting the full internet. This would let AT&T off the hook when they want to block voip. But at the same time it's hands off for customers who want the normal internet and the fcc could go after them if they meddle with those customers. I know this is far from perfect as from what I have read on Cnet it appears they want to apply heavy management rather than enlarging their pipes so maybe this could be a temp solution until they get their act together.
Crafty devil must've been planning this back when he had the Viet Cong break his fingers. I can't believe he has the nerve to deny Nancy Pelosi and our future Internet Czar the control they so rightly deserve!
"So, Sen. McCain, in answer to the severe recession caused largely by the irresponsible behaviour which was only allowed by your party's deregulation while in power your solution is to deregulate."
Awesome. Clearly a first class mind at work here. No wonder even lifelong Republicans voted for Obama. At some point maybe he'll get the message that more of the same is going to end his political career.
Let's see...with a company or individual, people have the option to vote with their wallets. They can walk away from and choose not to associate with those they disagree with."
Why so bitter jaguar717?
How can someone walk with their wallet if they only have one choice of an ISP. Comcast is the only choice in my area I can't walk.
You might not be able to walk when politicians interfere but you can make them walk by voting the scum out of office just like we did in 2006 and 2008. I think you are still angry about those loses. Get over it. The corporate Republicons are now only 20% of the population. soon they will be going the way of the whig party. Not a moment too soon.
The problem here is that the ISP's are trying to get into the content business and Net Neutrality would not let them monopolize their network to give then an advantage. In my view that's not a problem and would force them to innovate to keep up with the pure content companies.
Ideally, we wouldn't even have monopoly last mile providers, but that's probably not feasible given the current environment where telcos have the Justice Department, FTC, and politicians like McCain acting as their protectors.
It's unseemly to see McCain so blatantly whoring for the telcos. He admittedly doesn't understand these issues and is being used as a puppet by the industry. I used to think he had more honor than that.