Get ready, America—net neutrality finally comes to the Internet on November 20, 2011.
That's the plan, at least. The FCC has just filed its final "open Internet" rules (PDF) with the Federal Register, which will publish them tomorrow and make them official. The rules go into effect on November 20, nearly a year after they were passed over Republican opposition on a 3-2 vote. (One of the FCC Commissioners who voted against the rules now works for Comcast.)
But the plan will likely be derailed by lawsuits. Two, by Verizon and MetroPCS, were filed earlier this year but tossed because the rules had yet to be finalized. With tomorrow's printing in the Federal Register, the litigation floodgates will be thrown open and and complaints about the government overstepping its authority can start pouring in.
Those complaints might well meet with success, given how the FCC went about the whole process. Rather than reclassifying broadband services in such a way that the FCC has clear jurisdiction over them, the agency relied instead on its much weaker "ancillary jurisdiction." (The legal rationale for this begins on p. 77 of the final rules, and the FCC gamely makes a case that it has the proper authority.) As law professor James Grimmelmann noted today in our subscriber-only webchat, "The FCC is in a real tangle here. I think if they reclassified broadband service (long story), they'd have a better shot at getting their rules to stick."
As for the rules, they're the same modest regulations adopted back in December. Here's the FCC's own summary:
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.
Mobile networks still have broad leeway to discriminate and throttle and even block certain apps, though some of the most obviously objectionable activities are forbidden.
On the miraculous off-chance that no lawsuits are filed, however, we'll have a side of net neutrality lite to accompany Thanksgiving's pumpkin pie. But ISPs don't like constraints, no matter how modest, so the matter will probably be decided by federal judges.
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