FCC's 'General Conduct' Standard Draws Concern

There was some concern in cable and Internet circles that the Federal Communications Commission's seven-factor test for deciding if an Internet service provider practice hurts consumers or edge providers could put the agency in the business of making content calls on free expression on the Internet. That test, among the new proposed network neutrality rules under a Title II order scheduled to be voted by the FCC Feb. 26, has raised concerns about an online indecency regime or even political litmus tests.

A vague general conduct standard could give the FCC too much leeway to regulate outside of "bright-line" regulations -- no blocking, no throttling, no paid prioritization -- that give the industry some certainty, even if they don't like those constraints. Apparently, the seven factors include 1) the effect on free expression, 2) the effect on competition, innovation, investment or deployment, 3) whether the practice is application agnostic, 4) whether the end-user remains in control, 5) whether it is a standard, and 6) what technology is used, mobile or fixed. The FCC plans to apply that test to interconnection issues, zero-rating plans, and anything else that falls outside its bright line rules.