The FCC has released the full text of its new Open Internet order — the set of rules that are meant to protect net neutrality. Though the rules passed last month, the full text of the order hasn't been available until now. Even ahead of the vote, only those in the commission were able to see its actual text. That's not unusual, but considering the significance of this particular vote, a lot of noise was made by dissenting commissioners Ajit Pai and Michael O'Rielly about getting it released to the public. That's finally happened, though it occurred on the commission's normal timeline.
"We listened. We learned. And we adjusted our approach based on the public record."
One of the big questions this document answers is which Title II regulations the commission won't be applying to internet service. It turns out to be quite a lot: more than 700 rules aren't going to be applied. "This includes no unbundling of last-mile facilities, no tariffing, no rate regulation, and no cost accounting rules, which results in a carefully tailored application of only those Title II provisions found to directly further the public interest in an open internet and more, better, and open broadband," the order says. The idea that this proposal is a so-called "light touch" approach to regulation has been touted again and again, basically as a way to quell concerns from those who oppose regulation. Of course, it hasn't exactly done that, and we're still seeing plenty of complaints from the internet providers that are now having their services classified under Title II.
The order focuses on three specific rules for internet service: no blocking, no throttling, and no paid prioritization. "A person engaged in the provision of broadband internet access service, insofar as such person is so engaged, shall not impair or degrade lawful internet traffic on the basis of internet content, application, or service, or use of a non-harmful device, subject to reasonable network management," the order states, while outlining its rules against throttling. For paid prioritization, the order explains the practice as:
"Paid prioritization" refers to the management of a broadband provider’s network to directly or indirectly favor some traffic over other traffic, including through use of techniques such as traffic shaping, prioritization, resource reservation, or other forms of preferential traffic management, either (a) in exchange for consideration (monetary or otherwise) from a third party, or (b) to benefit an affiliated entityNotably, the order does not place regulations on interconnect points, which are what Netflix has been arguing with internet providers about for the last year. Instead, the order simply states that the FCC has the authority to hear complaints regarding interconnect, which will seemingly be addressed on an individual basis. "While we have more than a decade’s worth of experience with last-mile practices, we lack a similar depth of background in the internet traffic exchange context," the order says. "Thus, we find that the best approach is to watch, learn, and act as required, but not intervene now, especially not with prescriptive rules."
The commission does still allow internet providers to perform "reasonable network management," which might affect service. However, there are also strict rules as to what is and is not "reasonable." The commission says that reasonable management is something that primarily has a technical justification, not something that has a business purpose. It also specifically calls out Verizon's attempt to throttle the speeds of people on its unlimited data plans — that, seemingly, will not fly under these rules.
AT&T basically says it's "confident" the order will be torn down
This final order is quite different from what commission chairman Tom Wheeler first proposed a year ago. He speaks to that in a statement accompanying the order's release. "We listened. We learned. And we adjusted our approach based on the public record," he says. "In the process we saw a graphic example of why open and unfettered communications are essential to freedom of expression in the 21st century."
AT&T has taken the occasion to issue another vague threat / criticism of the order. "Unfortunately, the order released today begins a period of uncertainty that will damage broadband investment in the United States," AT&T exec Jim Cicconi says in a statement. "Ultimately, though, we are confident the issue will be resolved by bipartisan action by Congress or a future FCC, or by the courts." When AT&T says "uncertainty," what it means is that either it or another internet provider is probably going to sue, potentially bringing down the rules. How good the FCC's chances in court are depends on who you ask, but the commission typically has the authority to interpret how to apply rules like Title II.
Of course, the commission isn't actually worried that the rules will hamper broadband investment. That's because, for all of the threats it's received, it's also heard from internet providers like Sprint that the order won't actually change its investments, so long as the rules aren't too strict. From what the commission has said, they're not, so there's a good chance that AT&T and others are bluffing, trying to scare the commission with the threat of lessened investment, which it cares quite a bit about.