December 27, 2010 | By Abigail Phillips

2010 Trend Watch Update: Net Neutrality

At the beginning of this year EFF identified a dozen important trends in law, technology and business that we thought would play a significant role in shaping digital rights in 2010, with a promise to revisit our predictions at the end of the year. Now, as 2010 comes to a close, we're going through each of our predictions one by one to see how accurate we were in our trend-spotting. Today, we're looking back on Trend #6, Net Neutrality: The Rubber Hits The Road, where we predicted:

[W]hat will [net neutrality] mean when it makes the transformation from idealistic principle into real-world regulations? 2010 will be the year we start to find out, as the FCC attempts to implement the plan it adopts after its 107-page request for input about how to ensure a neutral Net.

But how far can the FCC be trusted? Historically, the FCC has sometimes shown more concern for the demands of corporate lobbyists and "public decency" advocates than it has for individual civil liberties. Consider the FCC's efforts to protect Americans from "dirty words" in FCC v. Pacifica Foundation, or its much-criticized deregulation of the media industry, or its narrowly-thwarted attempt to cripple video innovation with the Broadcast Flag.

With the FCC already promising exceptions from net neutrality for copyright-enforcement, we fear that 2010 could be the year when the FCC's idea of an "Open Internet" proves quite different from what many have been hoping for.

It seems we overestimated how much the Federal Communications Commission would be able to accomplish.

Last week, a year after receiving the first round of public comments (in which EFF participated) on the Net neutrality rules proposed by the FCC in 2009, the Commissioners approved a final set of regulations by which the FCC determines to govern the Internet.

Why the delay? The FCC’s efforts to assert jurisdiction over broadband were dealt a set-back in the middle of this year when the D.C. Circuit Court of Appeals ruled that the FCC had overstepped its “ancillary authority” in ordering Comcast to cease blocking BitTorrent traffic on its subscriber network.

We’re still looking at the actual rules, which were released publicly several days after the ratifying vote, and we'll comment more when we've completed our review. But from what we've gleaned from FCC statements, and despite some rumors otherwise, the FCC’s current theory for jurisdiction seems to be somewhat new. On the other hand, the substantive principles laid out in the final rules appear to be largely the same as those discussed by policymakers and other stakeholders throughout the year, and which we have repeatedly warned about for their loopholes and exemptions. We’ve also warned about the Trojan horse we may find on our hands if the FCC’s authority to regulate is approved in the courts.

We’ll be watching to see what 2011 holds; it seems likely that the new Congress will have something to say as well.

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