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Net neutrality: Someone WILL sue. So will the FCC's rules hold up?

A deep look into the legality of chairman Wheeler's Title II plans

Analysis More details about what is contained within new net neutrality rules outlined yesterday by FCC chairman Tom Wheeler have made it a virtual certainty that they will be approved by the watchdog later this month.

But that will not be the end of the matter. US cable companies are fiercely opposed to being regulated, so there will likely be two significant challenges to the rules: a legal challenge from cable companies, and Congressional efforts to limit or undermine the FCC and/or the new rules. Let's dig into both.

But first, what have we now learned is in the rules?

Back in November, The Register highlighted that if the FCC did push ahead with Title II classification (which seemed likely), it would probably forebear all but six of its 76 sections.

Those sections: 201, 202, 208, 222, 254 and 255 are in fact the exact same ones that the FCC has highlighted in its factsheet on the proposed plan. In addition, however, the regulator references "related enforcement provisions" in sections 206, 207, 209, 216 and 217.

What this means in plain language is that the FCC will be able to regulate service and charges, prevent discrimination over internet networks, allow for complaints, be able to act to ensure privacy, press for universal service (ie, make sure everyone in the country can get access to the internet) and make sure that people with disabilities are able to use services.

The FCC's factsheet addresses some of the main concerns about including these sections, noting that "broadband providers shall not be subject to tariffs or other form of rate approval, unbundling, or other forms of utility regulation" i.e. it won't touch pricing.

It also will not apply for the part of section 254 that require contributions to a universal service fund - so there will not be an additional cost to consumers over being classified as Title II. And the rules will not "impose, suggest or authorize any new taxes or fees". The factsheet also claims there will be no "burdensome" filing requirements or additional accounting standards.

The critical changes, aside from the existence of regulatory rules around broadband access - and mobile broadband - are three-fold:

  1. The FCC will be able to accept and act on complaints from users and companies if interconnection deals reached by ISPs are not "just and reasonable". This is the key net neutrality provision. It means cable companies will have a much harder time squeezing companies for additional fees on the basis of their access to consumers - everyone's main fear.
  2. The FCC will be able to act on future issues using a new "Open Internet conduct standard" that focuses on whether harm is being caused to consumers and/or edge providers on the network. This is the issue that most concerns cable companies since it means the FCC is empowered to force them to change future practices and so limit what they would call innovation and consumer groups would likely call price-gouging.
  3. These rules will apply to wireless as well as wired connections. For the average consumer this reflects a typical experience - watching a video clip or downloading data for apps on your phone or tablet with little or no thought to how it is being delivered. But in terms of regulatory impact, this would enable the FCC to clamp down on companies by using the same general network principles, regardless of how internet data is delivered.

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