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Members of the Federal Communications Commission (FCC) agreed on one thing at Tuesday's meeting: the Internet does not need to be fixed. Despite this shared sentiment, the FCC's commissioners are divided on whether the government should act in anticipation of potential problems as the Internet matures. The panel voted 3–2 in favor of the Open Internet Order, designed to ensure what has commonly been referred to as "net neutrality".
Commissioners Michael Copps and Mignon Clyburn joined FCC Chairman Julius Genachowski in passing the order, whereas commissioners Robert McDowell and Meredith Attwell Baker strongly dissented, disagreeing with the government's involvement in enforcing conduct on the Internet.
Genachowski acknowledged that the Internet and the World Wide Web have blossomed despite minimal federal regulation, but he also expressed concern over a lack of enforceable rules to protect consumers from any emerging Internet-related practices that might divide users into haves and have-nots. "I believe our actions today foster an ongoing cycle of massive investment, innovation and consumer demand both at the edge and in the core of broadband networks," he said during the meeting in Washington, D.C.
The order addresses several key principles: Users have a right to information about the performance of their broadband connections as well as the way in which their broadband providers manage the network itself (in particular, how they prioritize different types of traffic). The order, which applies to both fixed and wireless broadband services, prohibits the unlawful blocking of content, apps, services and the connection of devices to the network.
The Open Internet Order's goal is to create a level playing field where the commercial market, rather than the government or some other central authority, picks winners or losers, according to Genachowski, who added, "That's the role of the commercial market and the marketplace of ideas." As such, the order does not permit pay-for-priority arrangements between broadband providers and businesses operating on the Internet that would produce so-called fast lanes for some companies' content but not for others. Such arrangements "would allow broadband providers to skew the marketplace by favoring one idea, application or service over another by selectively prioritizing Internet traffic," he said.
This does not, however, prohibit broadband providers from developing tiered-pricing models to help them manage the expansion of and help with the investment in high-speed networks. The key distinction here is that it would be up to broadband providers, not their customers, to decide which content is prioritized.
"The crux of the order we're adopting, which is based on a strong and sound legal framework rooted in the [Tele]communications Act, is straightforward," Genachowski said. The order establishes an Open Internet Advisory Committee to ensure that these rules are adopted and enforced.
Genachowski also indicated that his support for the order was influenced in no small way by the position of Web inventor Tim Berners-Lee. The chairman cited a Berners-Lee article in the December issue of Scientific American at Tuesday's meeting, saying, "Although the Internet and Web generally thrive on lack of regulation, some basic values have to be legally preserved."
The commissioners opposed to the FCC's new broadband rules indicated that industry groups had been successful in monitoring Internet fairness and questioned whether the federal government had the legal right to intervene. McDowell said the order suffered from "regulatory hubris" and added, "Fortunately, the cures for this malady are obtainable in court." In a Wall Street Journal editorial on Sunday, McDowell wrote, "Nothing is broken that needs fixing."
Baker concurred. In a Washington Post editorial on Tuesday, she wrote, "Discouragingly, the FCC is intervening to regulate the Internet because it wants to, not because it needs to."
