By Josh Long

Declaring the openness of the Internet is at risk without government intervention, the Federal Communications Commission on Thursday voted to adopt regulations that prevent broadband providers from blocking access to lawful content, favoring or degrading Web traffic.

The Net neutrality regulations, fostered by FCC Chairman Tom Wheeler, apply for the first time to both fixed and mobile broadband providers.

“These enforceable, bright-line rules assure the rights of Internet users to go where they want, when they want, and the rights of innovators to introduce new products without asking anyone’s permission,” FCC Chairman Tom Wheeler said in a statement.

The Democrat-controlled FCC moved to treat broadband as a telecommunications service, a decision favored by the Obama administration, and vigorously opposed by AT&T and Verizon.

Without the FCC’s rules, Internet providers would be free to discriminate against traffic or arbitrarily extract money, said Mignon Clyburn, an FCC commissioner and Democrat who voted in favor of Wheeler’s order.

“This is more than a theoretical exercise,” she said in a statement. “Providers here in the United States have, in fact, blocked applications on mobile devices, which not only hampers free expression but also restrictions competition and innovation by allowing companies, not the consumer, to pick winners and losers.”

Impending Lawsuits

The three-to-two vote, along party lines, is almost certain to face legal challenges in Washington, D.C., where previous Internet regulations were overturned about a year ago.

“Instead of a clear set of rules moving forward, with a broad set of agreement behind them, we once again face the uncertainty of litigation, and the very real potential of having to start over – again – in the future,” Jim Cicconi, an AT&T senior executive vice president, wrote Thursday in a blog.

Republicans who preside over a communications subcommittee in the U.S. House of Representatives predicted “a stampede to the courts, unleashing years of lawsuits and uncertainty at a time when U.S. leadership and the Internet economy are more important than ever.”

Old-School Regulation

The FCC moved to subject broadband Internet to Title II of the Communications Act of 1934. AT&T and Verizon, which are among the largest U.S. broadband providers, said the decision was unnecessary and fails to reflect current technologies and consumer choices.

“What doesn’t make sense, and has never made sense, is to take a regulatory framework developed for Ma Bell in the 1930s and make her great grandchildren, with technologies and options undreamed of eighty years ago, live under it,” Cicconi declared.

Well aware of the criticism, Wheeler responded Thursday in his statement: “We have heard endless repetition of the talking point that ‘Title II is old-style, 1930’s monopoly regulation.’ It’s a good sound bite, but it is misleading when used to describe the modernized version of Title II in this Order.”

The FCC explained it has chosen to refrain or forbear from applying 27 Title II provisions, and more than 700 related regulations that are unrelated to broadband, under its legal authority.

FCC Commissioner Michael O’Rielly, a Republican who voted against the Net neutrality rules and said the majority had rewritten communications law, wasn’t persuaded that the FCC’s forbearance authority would resolve concerns that the Title II regulations would be overly burdensome.  

“Perhaps the most surprising—and troubling—aspect of the item is that it promises forbearance from most of Title II but does not actually forbear from the substance of those provisions,” he said in a statement. “Instead, the item intends to provide the same protections using a few of the ‘core’ Title II provisions that are retained … I call this maneuver fauxbearance.”

Divided Reactions

Over the last year, the issue of protecting the Internet fetched an unprecedented number …

… (about 4 million) of public comments at the FCC. Various interests are starkly divided on whether Wheeler & Co. got it right.

“Today’s FCC vote in favor of strong, enforceable Net neutrality rules is a win for students, creators, researchers and learners of all ages,” American Library Association President Courtney Young said Thursday.

Constitutional Rights PAC Chairman Larry Ward characterized the FCC’s decision as “a disgusting powergrab” that “is totally at odds with liberty and the Republican form of government.”

“What the FCC affected today was accomplished completely outside of the U.S. Congress, the body designed by the Constitution as the People’s forum on law,” Ward continued. “In fact, not a single member of Congress – or anyone in the public – was granted access to read the FCC’s original 322-page plan or its more recent 317-page revision.”

No Paid Prioritization

The restrictions adopted by the FCC authorize broadband providers to engage in “reasonable network management”; however, there is an absolute prohibition on the controversial practice known as paid prioritization. Consumer groups and others feared such content companies as Amazon and Netflix would pay a premium to broadband providers in exchange for faster Web access to their customers. That could leave other Web content at a disadvantage by relegating it to slower lanes, they said.

“We cannot have a two-tiered Internet with fast lanes that speed the traffic of the privileged and leave the rest of us lagging behind,” FCC Commissioner Jessica Rosenworcel, a Democrat who voted in favor of Wheeler’s proposal, said. “We cannot have gatekeepers who tell us what we can and cannot do and where we can and cannot go online. And we do not need blocking, throttling and paid prioritization schemes that undermine the Internet as we know it.”