On US Net Neutrality Rules, 11th-Hour Push Against Vague Rule

As the US Federal Communications Commission prepares to vote on new rules for high-speed Internet service, one aspect of the rules is drawing criticism from both opponents and proponents of tighter regulation.

The FCC, which is set to vote next week to regulate Internet service providers more like traditional telephone companies, has introduced a so-called "general conduct" provision in the latest version of the rules that aim to ensure net neutrality, the principle that all web traffic should be treated equally.

In the general conduct provision, the FCC will say that Internet providers' actions cannot be harmful to consumers or content providers, and will outline seven elements that the regulators would consider in reviewing potential violations of that standard, agency officials have said.

But the Internet providers, who reject the tougher regulatory regime, as well as advocates of stronger regulation, both say that this general conduct provision is too vague. They have made a last-ditch effort to push for changes, according to FCC disclosures, filings and interviews with lobbyists and activists.

Although the FCC has not publicly disclosed specifics of the seven factors, an FCC spokeswoman told Reuters that three of those guidance criteria are related to impact on competition, innovation, and free expression.

Industry sources say the other four criteria focus on impact on broadband deployment and investments; whether actions in question are specific to some applications and not others; whether they comply with industry best standards and practices; and whether they take place without the awareness of the end-user, the Internet subscriber.

Telecom and cable lobbyists say the rules' vague guidelines could effectively require the companies to consult the FCC every time they want to create a new service, to make sure it doesn't run afoul of the rule.

Net neutrality advocates for their part, worry that the rules will lack clarity for both the Internet providers and potential complainants, making them harder to administer and potentially leading to arbitrary interpretation.

Rare agreement by two sides
"A 'general conduct rule,' applied on a case-by-case basis with the only touchstone being whether a given practice 'harms' consumers or edge providers, may lead to years of expensive litigation to determine the meaning of 'harm' (for those who can afford to engage in it)," the Electronic Frontier Foundation, a net neutrality advocate, said in a filing submitted on Thursday.

The shared concern by industry groups and activists is a rare example of the two sides being aligned in the long-running debate over whether Internet service providers should be subject to tighter regulation.

Net neutrality advocacy groups have for years sought stricter regulations, including a ban on Internet providers blocking or unfairly slowing down any web content or providing faster access in return for payment.

Companies say they don't oppose those specific rules, but that a stringent new regulatory regime would stifle investment.

The Federal Communications Commission will vote on the new rules on Feb. 26. Lobbyists say the FCC is unlikely to change the general conduct rule so late before the vote, but the matter is expected to spill over into Congress, where Republican lawmakers hope to counter FCC's regulations with new laws.

© Thomson Reuters 2015