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Net neutrality rules let FCC police future ISP conduct

Grant Gross | March 20, 2015
The U.S. Federal Communications Commission's new net neutrality rules allow the agency to police future network management practices and business models rolled out by broadband providers, raising concerns among critics that an activist commission will inject itself into ISP board rooms.

Having reclassification of broadband and the future conduct standard both included in the new rules "is sort of the worst of both worlds," the telecom lobbyist said. "Any benefit to the ISP community with bright-line rules is eviscerated by this very broad, we'll-know-it-when-we-see-it type standard."

The future conduct standard is outlined in pages 59 to 64 of the FCC's 400-page net neutrality order. The FCC can prohibit, "on a case-by-case basis, practices that unreasonably interfere with or unreasonably disadvantage the ability of consumers to reach Internet content ... or of edge providers to access consumers using the Internet," the order says.

The FCC will look at several factors when applying the future conduct standard, the rules say. Factors include the impact on end-user control, competition with providers' own services, and effects on innovation and broadband deployment and on free expression.

Just following the description of the future conduct standard, the order discusses data caps and plans offered by some mobile carriers to exempt data such as music downloads from monthly data allowances. While the order does not prohibit data caps or sponsored mobile data, it "casts some doubts" on those practices, the telecom lobbyist said.

The net neutrality rules, beginning on page 106, outline a process for staff to give advisory opinions to broadband providers who want to run a proposed business model past the agency before rolling it out. But those advisory opinions won't have the weight of an official commission decision.

The FCC's Enforcement Bureau will be able to reconsider, rescind or revoke those advisory opinions, and the commission itself will be able to overrule them, according to the order.

"It's unclear what you're supposed to do when you have a new innovation or a new service," the telecom lobbyist said. "There's just a lot of ambiguity."

Even the Electronic Frontier Foundation, one of the most vocal proponents of strong net neutrality rules, urged the commission to jettison its future conduct standard.

A case-by-case future conduct standard, "may lead to years of expensive litigation to determine the meaning of 'harm' (for those who can afford to engage in it)," the EFF wrote in a February letter to the FCC. "What is worse, it could be abused by a future commission to target legitimate practices that offer significant benefits to the public but could also be construed to cause some harm to a specific provider or consumer."

Other net neutrality supporters defended the future conduct clause. The standard is "simply a restatement" of a traffic nondiscrimination standard found in common carrier regulations that now cover broadband service, said Matt Wood, policy director at digital rights group Free Press.


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