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FCC Net neutrality rules reach mobile apps

Mobile providers can't restrict VoIP apps, and "paid prioritization" is illegal, according to 194 pages of rules approved Tuesday that are now public.

Declan McCullagh Former Senior Writer
Declan McCullagh is the chief political correspondent for CNET. You can e-mail him or follow him on Twitter as declanm. Declan previously was a reporter for Time and the Washington bureau chief for Wired and wrote the Taking Liberties section and Other People's Money column for CBS News' Web site.
Declan McCullagh
4 min read

Net neutrality advocates in Washington have long insisted that eventual government regulations would be simple and easy to understand. Public Knowledge has called the Net neutrality concept "ridiculously simple," and Free Press said the rules would be "clear" and easy to understand.

The Federal Communications Commission finally released its long-expected regulations this afternoon, which it had previously approved on a 3-2 party line vote earlier this week, and they're not exactly "ridiculously" simple. The rules and the related explanations total a whopping 194 pages (PDF).

One new item that was not previously disclosed: mobile wireless providers can't block "applications that compete with the provider's" own voice or video telephony services. By including that rule, the FCC effectively sided with Skype over wireless carriers.

A series of disputes erupted last year over whether Skype would be allowed on smartphones and over whether it was AT&T or Apple that was responsible for Google Voice not appearing in the iPhone's App Store. (In October 2009, AT&T agreed to support voice over Internet Protocol applications such as Skype on its 3G network, and Google Voice appeared as an iPhone application last month.)

The legality of "paid prioritization," which previously was ambiguous, also has been cleared up. The concept means a broadband provider favoring some traffic over other traffic. That would mean Amazon.com can't, theoretically, pay Comcast for its Web site to load faster than Barnes & Noble's.

The FCC acknowledged there's no evidence that "U.S. broadband providers currently engage in such arrangements." But because any pay-for-priority deals would "represent a significant departure from historical" practice and potentially raise barriers to entry on the Internet, they should be outlawed.

That section of today's order, which has been championed by Chairman Julius Genachowski, rejects arguments about paid prioritization that AT&T made earlier this year. As CNET reported at the time, AT&T noted it already had "hundreds" of customers who have paid extra for higher-priority services, and it argued that the Internet Engineering Task Force's specifications explicitly permit the practice.

Genachowski had said during Tuesday's vote that the rules would require all broadband providers including mobile services to disclose their network management practices, and that non-mobile providers would be prohibited from blocking and "unreasonably" discriminating against network traffic.

Other points that became public in today's order:

• Internet providers are allowed to block users from committing copyright infringement, "which has adverse consequences for the economy," though the FCC intentionally left ambiguous the extent of this authority.

• Mobile providers, which are generally not the target of these rules, nevertheless can't block access to "lawful" Web sites or "competing" services. That includes "a voice or video telephony service" provided by that carrier or a parent company.

• The definition of "reasonable" network management: "Appropriate and tailored to achieving a legitimate network management purpose, taking into account the particular network architecture and technology of the broadband Internet access service."

• All broadband providers, including mobile wireless providers, must disclose their network practices. That includes "descriptions of congestion management practices; types of traffic subject to practices; purposes served by practices; practices' effects on end users' experience; criteria used in practices, such as indicators of congestion that trigger a practice, and the typical frequency of congestion; usage limits and the consequences of exceeding them; and references to engineering standards, where appropriate."

• It also includes "whether and why the provider blocks or rate-controls specific protocols or protocol ports, modifies protocol fields in ways not prescribed by the protocol standard, or otherwise inhibits or favors certain applications or classes of applications."

The FCC has been attacked on nearly all sides since its vote Tuesday, with pro-regulation groups like Free Press and Public Knowledge saying the order doesn't go far enough, especially in terms of regulating wireless providers. That was echoed by FCC commissioner Michael Copps, a Democrat, saying he almost voted against the proposal because it "could--and should--have gone further."

Robert McDowell, a Republican, dissented from the vote, saying the FCC did not have the legal authority to enact Internet regulations. The real effect, he predicted, would be: "Less investment. Less innovation. Increased business costs. Increased prices for consumers. Disadvantages to smaller ISPs. Jobs lost."

The ultimate fate of the FCC's order released today is, of course, anything but certain.

In April, a federal appeals court unceremoniously slapped down the agency's earlier attempt to impose Net neutrality penalties on Comcast after the company temporarily throttled some BitTorrent transfers.

And more than a few Republican members of Congress -- including incoming House Speaker John Boehner--have slammed the FCC's action as an illegal attempt to regulate the Internet. In the 2011 funding bill, they could prohibit the FCC from enforcing any such rules.

Last updated at 4:45 p.m. PT