This morning, an appellate court issued a long-awaited decision upholding the Federal Communications Commission's net neutrality rules, which classified broadband access as a utility service.
The regulations — passed 3-2 last year — include so-called "bright-line" prohibitions that prevent Internet service providers from blocking or degrading traffic and from creating paid fast lanes. The rules also include a somewhat vague "general conduct" standard that broadly prohibits ISPs from unreasonably impeding the ability of consumers and content providers to reach each other.
The FCC has not yet elaborated on what type of activity by ISPs will violate that general conduct standard. But now that the rules have been upheld, some observers think the FCC may start answering that question.
One practice already drawing scrutiny centers on data caps — meaning the amount of broadband data that consumers can use each month without incurring penalties or experiencing slowdowns.
Currently, T-Mobile's s Binge On program exempts video streams offered by dozens of companies from consumers' caps, but also throttles all video to 1.5 Mbps. Binge On is activated by default, but users can always turn it off. AT&T and Verizon zero-rate data from companies that pay to sponsor it, and in Verizon's case, from its own video service, go90.
Consumer advocates argue that data-cap exemptions undermine net neutrality by steering subscribers to specific video providers — like the ones who participate in Binge On. The FCC has said it's investigating the issue, but hasn't yet taken a position on it.
Today, University of Pennsylvania law professor Christopher Yoo, who opposed the regulations, said the appellate court's decision "calls into question" services like Binge On. "Over the long run, the decision will likely preempt new services that deliver video or other types of content in innovative ways," Yoo said in a statement.
The CTIA added that it urges the FCC "to support innovative new services, like free data, that benefit consumers and reflect the highly competitive mobile market.”
This morning's decision also leaves the FCC poised to move forward with broadband privacy, given that the agency is empowered to subject common carriers to confidentiality rules.
The agency previously proposed that ISPs should obtain consumers' opt-in consent before using data about their Web-surfing activity to send them targeted ads. That standard would apply only to broadband providers, and not "edge providers" like Google, Facebook, Netflix and ad networks.
Broadband providers as well as some lawmakers are fighting the FCC's proposal, while privacy advocates are urging the agency to adopt the proposed rules.
“The court has recognized that the internet has become so essential to our daily lives that broadband internet access providers should be regulated as a utility,” John Simpson, director of Consumer Watchdog’s Privacy Project, stated today. “Now the FCC must enact key privacy rules to protect consumers.”
