FCC Net Neutrality Rules Set to Move Ahead

The Federal Communications Commission on Thursday issued additional guidance in connection with broadband providers obligations to disclose certain information to consumers, addressing criticism that has been holding up the effective date of Net neutrality rules that prohibit the likes of AT&T and Comcast from blocking lawful content or unreasonably discriminating on their networks.

In a public notice, the FCCs Enforcement Bureau and Office of General Counsel offered additional guidance concerning specific methods of disclosure that the agency will consider in determining whether a broadband provider has complied with a disclosure or so-called transparency rule adopted in the FCCs controversial Open Internet Order

Such guidance is expected to clear the way for the FCC to send an application required under federal law specifically the Paperwork Reduction Act to the White Houses Office of Management and Budget for approval, a process that is required before the rules can actually take effect.

The FCC released its order in December. Citing a rationale for its rules, the FCC asserted that the openness of the Internet faces genuine threats from broadband providers that block or degrade content and applications without revealing their practices. Yet rules that were several years in the making still haven’t taken effect, thanks partially to concerns over the disclosure requirements.

Some critics had asserted that the disclosure requirements were too broad and burdensome and could subject broadband providers to untold litigation, and public documents reflect that FCC officials have been meeting with representatives of the communications industry as recently as this month to discuss such concerns.

The American Cable Association was concerned that the data collection burdens associated with the Open Internet disclosure rule had been underestimated, particularly for smaller broadband providers, and lacked specificity in key respects,” ACA President and CEO Matthew Polka said in a statement in response to todays development. The new guidance lessens concerns raised by ACA in its June 8, 2011 letter to the FCC.”

Once the rules take effect, which likely wont be until the fall at the earliest, the U.S. government will likely have to defend them in court.

Earlier this year, a federal appeals court in Washington, D.C. dismissed challenges to the Open Internet Order, ruling that MetroPCS and Verizon Communications filed lawsuits prematurely. But the U.S. Court of Appeals for the District of Columbia Circuit noted that the FCCs rules would be subject to judicial review upon publication in the Federal Register.”

Some observers speculated that the companies had filed the appeals prematurely for a strategic advantage in order to increase their chances that appellate judges in Washington, D.C., would hear their appeals rather than a federal appeals court in another jurisdiction.

The D.C. Circuit Court is reputed as an expert on administrative law and has been known to throw out FCC rules when the agency has abused its discretion or otherwise violated law.

The FCC’s rules impact fixed and wireless broadband providers, although wireless providers are subject to fewer requirements.

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