The Federal Communications Commission has released its long-awaited Open Internet Order, a seemingly simple set of rules designed to insure that consumers get access to the websites they want and businesses get access to consumers.
The inevitable legal attack on the new rules will be simple, too. It can be summed up with two words: What changed? Through 313 dense pages of regulations and explanations, the FCC never explains why it needs to pull a 180-degree shift in how it oversees the Internet, from treating it as an “information service” exempt from utility-style regulation, to a “telecommunications service” falling under the 1934 law written to control telephone monopolies.
“The real question is, will a court defer to the FCCs view of the facts?” said John Beahn, counsel in Skadden’s Washington office focusing on telecommunications law. “There are going to be a lot of billable hours spent on that.”
The rules, as I said, appear simple. The fundamental idea is to guarantee the free flow of bits from so-called edge providers of information, entertainment and apps through the chokepoints of the Web to consumers, without anybody holding out their hand for a toll along the way. Broadband Internet providers – including wireless carriers – are prohibited from blocking legal websites, throttling back traffic, or charging fees for better access to consumers.
The agency justifies the new rules based on the understanding that the Internet has matured from a technologically complex network of computers crunching data to something more akin to a telephone system transporting information seamlessly to consumers.
“Times and usage patterns have changed and it is clear that broadband providers are offering both consumers and edge providers straightforward transmission capabilities that the Communications Act defines as a `telecommunications service,’” the order says, expressing the views of the three Democratic commissioners who voted for it. “Today, broadband Internet access service is fundamentally understood by customers as a transmission platform through which consumers can access third-party content, applications, and services of their choosing.”
So far, so logical. But does the FCC have the legal authority to make such a sweeping change in how it defines the Internet? …more
FULL ARTICLE HERE.
FCC’s Net-Neutrality Order Is Missing One Important Element: Facts.