In the days leading up to the Federal Communications Commission’s "net neutrality" vote earlier this month, Commissioner Ajit Pai frequently criticized the Commission for not releasing the full text of the Order being voted on. (In point of fact, both Democratic and Republican FCC commissioners have historically insisted on having a three-week window to deliberate before holding a vote.)
On February 25, Commissioner Pai tweeted a picture of himself holding the plan, adding, “The public still can’t see it.”
As of Thursday, the public can now see the order – all 400 pages of it.
This is the set of rules that reclassifies the Internet as a public utility and broadband Internet providers as “common carriers” under Title II of the Telecommunications Act of 1996. By classifying providers in this way, the FCC gives itself more power to mandate that providers treat all traffic flowing across their networks more or less equally. Providers may not prioritize certain services or applications over others, nor may they create “fast lanes” for those companies willing to pay to have their content delivered to consumers faster. This evenhanded treatment of Internet traffic is what’s meant by the term “net neutrality.”
What’s most surprising about the bill is the extent to which the FCC won’t regulate providers. Title II allows it to take measures such as setting retail rates and even mandating that providers lease (or “unbundle”) portions of their networks to competitors. But the FCC says it won’t be doing any of that. More than 700 of the Title II rules won’t be applied to broadband Internet providers. That means those providers are exempt from tariffing and cost-accounting rules, in addition to rate regulation and mandatory unbundling.
The order also does not make specific rules about interconnect points – the places at which the networks of content providers meet those of broadband providers, such as Comcast and Verizon. Last year, Netflix paid large sums to both of those companies to be able to hook directly into their networks, bypassing the Internet backbone and avoiding congestion. The order doesn’t cover those sorts of arrangements; it only says that the FCC can hear interconnection complaints on a case-by-case basis.
The order does allow broadband providers to prioritize traffic in the interest of “reasonable network management,” but it imposed strict rules concerning what is and is not “reasonable.” Throttling an application that is slowing down network access for everyone during peak hours might be considered reasonable. Degrading connection speeds to induce customers to upgrade to higher-tier connection plans would not be.
AT&T criticized the order on the grounds that it could disincentivize companies from improving Internet access for their customers. “Unfortunately, the order released today begins a period of uncertainty that will damage broadband investment in the United States,” AT&T executive Jim Cicconi wrote in a statement. “Ultimately, though, we are confident the issue will be resolved by bipartisan action by Congress or a future FCC, or by the courts.”