FCC adopts new network neutrality rules on unstable jurisdictional ground

After months of consultation and over 100 000 submissions, the Federal Communications Commission has adopted an order which requires providers of a “broadband internet access service” to comply with its three principles of network neutrality:

The Commission adopts three basic protections that are grounded in broadly accepted Internet norms, as well as our own prior decisions.

First, transparency: fixed and mobile broadband providers must disclose the network management practices, performance characteristics, and commercial terms of their broadband services. Second, no blocking: fixed broadband providers may not block lawful content, applications, services, or non-harmful devices; mobile broadband providers may not block lawful websites, or block applications that compete with their voice or video telephony services. Third, no unreasonable discrimination: fixed broadband providers may not unreasonably discriminate in transmitting lawful network traffic.

The big change in the final order is that it now partially encompasses mobile broadband providers, which the order prohibits from blocking competitor voice services, such as Skype or Google Voice. Of course, the rules seem to permit throttling under the guise of “reasonable network management”, which in practice could serve to render the competing services all but useless. Transparency obligations apply across the board, which can only be a good thing for consumer choice and effective competition. As carriers continue along the path of vertical integration, neutrality will only become a bigger regulatory issue.

The rules come into force on 20 November 2011. An administrative challenge the jurisdictional validity of the rules seems a virtual certainty — mobile carriers, in particular, have much to lose. More analysis from Wired here.