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New rules with limited protection for Net neutrality about to take effect

(RSF/IFEX) - The new US rules on net neutrality, which the Federal Communications Commission (FCC) approved on 21 December 2010, were finally published in the Federal Register (the federal government's official journal) on 23 September 2011 and will take effect on 20 November.

Encouraging initiatives, but insufficient

The FCC is reinforcing several Net Neutrality principles. It says, for example that it aims to "preserve the Internet as an open platform for innovation, investment, job creation, economic growth, competition, and free expression."

Internet Service Providers (ISPs) will not be able to adjust charges to consumers according to bandwidth use and will have to be more transparent about their network management practices. Reporters Without Borders nonetheless thinks that the new rules suffer from several shortcomings.

Bandwidth adaptable to needs of companies

Under the new rules, ISPs will maintain the right to increase the bandwidth available to companies that need it to send bandwidth-heavy content. In other words, ISPs will be able to negotiate commercial deals with individual Internet companies favouring access to specific content. Reporters Without Borders warns against the possible discriminatory effects of this measure that does not guarantee the same quality of access to all.

Danger of "overblocking"

The FCC has banned the filtering of "lawful" content but allows the blocking of "unlawful" websites and peer-to-peer transmission. Reporters Without Borders warns that this could result in the accidental blocking of "lawful" websites and applications such as Skype, which is based on the peer-to-peer system.

Ban on "unreasonable" discrimination

When it comes to banning discrimination in content transmission, the FCC limits the ban to fixed broadband providers, excluding mobile services, and limits it to "unreasonable" discrimination, a concept that is too vague and too open to varying interpretation.

Free hand for mobile broadband

In fact, most of the rules apply only to fixed broadband providers. Mobile broadband providers are largely given a free hand, although, thanks to the increasing use of smartphones and tablet computers, more and more people are using mobile access.

Legal challenges probable

Several broadband operators have announced that they will file legal challenges to the FCC's rules. Those operators include Verizon, which filed a lawsuit on 30 September. The non-profit organization Free Press has also filed a challenge. Verizon and MetroPCS, another broadband access provider, already filed a suit in January but it was thrown out of court on the grounds that the new rules had not yet been officially published.

The five-member FCC's two Republican Party members voted against the rules in December 2010, arguing that only Congress should regulate the Internet. One of them, Robert McDowell, said in July 2011: "Those rules are unnecessary at best, and will deter investment in badly needed next-generation infrastructure at worst."

Net Neutrality is also a hot topic in Europe. On 23 September, the Council of Europe's 47 member states issued a series of decisions guaranteeing the Internet's universality and neutrality. Their position was defended at the 6th Internet Governance Forum that was held in the Kenyan capital of Nairobi from 27 to 30 September.

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