By Ike Himowitz, Attorney, Arent Fox LLP

Rather than ending a long-running saga, the FCCs passage of a network neutrality order shortly before the Christmas holiday opened a new chapter for legislators, regulators, and industry participants, while settling very little. 

The order itself was approved only after the commissions three Democrats (including Chairman Genachowski) settled an internal dispute and reached an agreement both on the scope of the new rules and  the legal justification behind them. Prior to the agreement, Democratic Commissioners Clyburn and Copps had argued in their public statements for tougher network neutrality rules, while the chairman sought industry consensus. Indeed, until the final days it remained possible that one or both fellow Democrats might vote against the chairmans draft in hopes of securing stronger language.

Ultimately, the FCC established rules for wireline broadband providers that require increased transparency with respect to network management practices, performance and security measures. The order also restricts the right of providers to block lawful content, applications, services, or non-harmful devices” and prohibits unreasonable” discrimination against lawful network traffic. The commission also imposed a limited subset of the same rules on wireless broadband carriers.

However, the impact of the order remains unclear. 

First, the network neutrality rules themselves are non-specific, and their provisions are subject to reasonable network management practices,” the scope of which will be developed on a case-by-case” basis. 

Second, the commissions authority to promulgate the rules is uncertain; in taking action, the commission declined to classify broadband Internet as a telecommunications service,” and previous attempts to regulate broadband service under its current classification as an information service” recently were rejected by a federal court of appeals.

Finally, the new Republican majority in the House of Representatives has threatened action to overturn the proposed rules. While such an action is unlikely to be enacted by the Senate and signed into law by President Obama, the House can still bring significant pressure to bear on the commission and on the chairman specifically, through the oversight process.

Both sides in the network neutrality debate have criticized the new rules. For example, Free Press, a pro-network neutrality advocacy group, declared that, the FCC chairman has pushed through a rule that favors the very industry his FCC is supposed to regulate, leaving Internet users with few protections and putting the future of the open Internet in peril.”  Similarly, CCIA President and CEO Ed Black declared that the orders legal framework to prevent discrimination by Internet access providers was inadequate” and argued that the order falls short” of preserving the open Internet.

Broadband providers also attacked the order. Verizon argued that the order breaks with years of bipartisan communications policies that recognized that Internet innovation and investment — and the jobs they create — thrive without government intervention.” CTIA president Steve Largent actively supported the Republican commissioners nay votes, saying that Net neutrality rules are unnecessary, and … are particularly unnecessary for the wireless industry that continually innovates, competes and significantly invests in our nation.”

Advocates on both side of the issue are reserving their rights to challenge the order in court, and both will try to influence how the orders provisions are implemented. Any real effects remain many months and perhaps years away, and will be certain only when the FCC has prosecuted (or failed to prosecute) alleged rule violators and any legal challenges to the order itself have been settled by the courts. Stay tuned.

Ike Himowitz is a attorney at Arent Fox LLP in Washington, D.C., where he is a member of the telecommunications and litigation teams.  He specializes in telecommunications policy, telecommunications-related litigation, and network interconnection negotiations and disputes.  Any opinions expressed above are his own and not that of his firm or its clients.  He can be reached at [email protected].