EFF: ‘We are deeply concerned; FCC’s new rules include provision that sounds like a recipe for overreach’

The Electronic Frontier Foundation has released the following open letter to the U.S. FCC:

Dear FCC: Rethink The Vague “General Conduct” Rule

For many months, EFF has been working with a broad coalition of advocates to persuade the Federal Communications Commission to adopt new Open Internet rules that would survive legal scrutiny and actually help protect the Open Internet. Our message has been clear from the beginning: the FCC has a role to play, but its role must be firmly bounded.

Two weeks ago, we learned that we had likely managed the first goal — the FCC is going to do the right thing and reclassify broadband as a telecommunications service, giving it the ability to make new, meaningful Open Internet rules. But we are deeply concerned that the FCC’s new rules will include a provision that sounds like a recipe for overreach and confusion: the so-called “general conduct rule.”

According to the FCC’s own “Fact Sheet,” the proposed rule will allow the FCC to review (and presumably punish) non-neutral practices that may “harm” consumers or edge providers. Late last week, as the window for public comment was closing, EFF filed a letter with the FCC urging it to clarify and sharply limit the scope of any “general conduct” provision:

[T]he Commission should use its Title II authority to engage in light-touch regulation, taking great care to adhere to clear, targeted, and transparent rules. A “general conduct rule,” applied on a case-by- case basis with the only touchstone being whether a given practice “harms” consumers or edge providers, may lead to years of expensive litigation to determine the meaning of “harm” (for those who can afford to engage in it). What is worse, it could be abused by a future Commission to target legitimate practices that offer significant benefits to the public . . .

Accordingly, if the Commission intends to adopt a “general conduct rule” it should spell out, in advance, the contours and limits of that rule, and clarify that the rule shall be applied only in specific circumstances.

Unfortunately, if a recent report from Reuters is correct, the general conduct rule will be anything but clear. The FCC will evaluate “harm” based on consideration of seven factors: impact on competition; impact on innovation; impact on free expression; impact on broadband deployment and investments; whether the actions in question are specific to some applications and not others; whether they comply with industry best standards and practices; and whether they take place without the awareness of the end-user, the Internet subscriber.

There are several problems with this approach. First, it suggests that the FCC believes it has broad authority to pursue any number of practices—hardly the narrow, light-touch approach we need to protect the open Internet. Second, we worry that this rule will be extremely expensive in practice, because anyone wanting to bring a complaint will be hard-pressed to predict whether they will succeed. For example, how will the Commission determine “industry best standards and practices”? As a practical matter, it is likely that only companies that can afford years of litigation to answer these questions will be able to rely on the rule at all. Third, a multi-factor test gives the FCC an awful lot of discretion, potentially giving an unfair advantage to parties with insider influence.

We are days away from a final vote, and it appears that many of the proposed rules will make sense for the Internet. Based on what we know so far, however, the general conduct proposal may not. The FCC should rethink this one.

Source: Electronic Frontier Foundation

Related articles:
The U.S. FCC’s Orwellian Internet policy – February 25, 2015
Democratic FCC commissioner balks at so-called ‘net neutrality’ rules – February 24, 2015
FCC chief pressed to release proposed regulations governing so-called ‘net neutrality’ – February 23, 2015
FCC Commissioner Ajit Pai: Obama’s plan a monumental shift toward government control of the Internet – February 10, 2015
Congress launches investigation as Republicans claim Obama had ‘improper influence’ over so-called ‘net neutrality’ – February 7, 2015
FCC chairman proposes to regulate ISP’s under Title II – February 4, 2015
U.S. congressional Republicans’ bill aims to head off Obama’s so-called ‘net neutrality’ plan – January 17, 2015
U.S. Congressional proposal offers Internet rules of the road – January 15, 2015
U.S. FCC says it will vote on so-called ‘net neutrality’ in February – January 3, 2015
FCC hopes its rules for so-called ‘net neutrality’ survive inevitable litigation – November 22, 2014
Obama-appointed FCC chairman distances himself from Obama on so-called ‘net neutrality’ – November 12, 2014
What does so-called ‘net neutrality’ mean for Apple? – November 12, 2014
AT&T to pause fiber investment until net neutrality rules are decided – November 12, 2014
There’s no one to root for in the debate over so-called ‘net neutrality’ – November 11, 2014
U.S. FCC plays Russian Roulette with so-called ‘net neutrality’ – November 11, 2014
U.S. House Speaker John Boehner: Republicans will continue efforts to stop misguided scheme to regulate the Internet – November 10, 2014
Tech Freedom: Obama cynically exploits confusion over Title II, misses opportunity to lead on legislative deal – November 10, 2014
Obama want FCC to regulate the Internet; Cruz calls it ‘Obamacare for the Internet’ – November 10, 2014


  1. All this is, is a HUMONGOUS power grab by Obama, with the same crap that we are getting from Obamacare.. Confusion, obfuscation, lies, and in the end, the Internet will be in the same tatters as heathcare is..

  2. This is what tin pot dictators do. Just let Obama be Obama. He knows best. And he said “If you like your internet provider you can keep your internet provider.” And he promised to set up a new government run website where we could apply every month for Internet access and if our application is properly worded and we are deemed acceptable we should receive internet access that is highly reliable, on Mondays and Thursdays. He is such a brilliant man.

  3. I can see the propaganda corps is making their way around the comments of these sites. The Wealthy Right Corporatocracy certainly are flooding every article about Net Neutrality with neocon misinformation and lies.

    1. “Misinformation”?! That is a laugher. How can there be misinformation when Obama’s man at the FCC refuses to make public the plan they intend to implement? Why don’t you tell your Muslim President to make the plan public now so we can all see how brilliant it is before it is voted on? Wouldn’t that be a good idea?

    2. “neocon misinformation and lies”… Really?!? No neocon ever went around telling the nation “if you like your doctor/plan, you can keep your doctor/plan”! I hear tell that won ‘The One’ the “Liar of the Year” award.

  4. Despite what the EFF has said, it appears that by listing seven (7) specific evaluation criteria, that the FCC is well on their way to being open by identifying their particulars for the proposed ‘General Conduct’ requirement. And let’s not forget that there’s reportedly another 300+ pages behind the basics which presumably go into greater detail.

    1. If they are so “open” then publish the pages before they vote on them so the public can SEE them and actually COMMENT on what they really say. That’s what is supposed to happen during the public comment period. . . not this “Well, it might contain something like this” or “It may contain this, with 300 pages to define it” but we have to pass it before YOU can see what’s in it Bull Shit! How well did that work with the ACA??? We are STILL finding lots of big and little gems in that mess!

  5. Let’s look at the government’s recent efforts at regulation. Start with the banking industry where the federal regulations implemented after the 2008 crash have only succeeded in making the too big to fail banks even bigger.

    Then let’s turn to food where the feds are implementing “food safety” rules that will severely hurt small farmers and organic growers, but benefit the big boys like Monsanto.

    Finally, let’s look at health care where the government solution now forces citizens to buy health insurance policies far in excess of what most people need while primarily enriching the insurance companies by forcing citizens to purchase their product.

    So why would any person with intelligence greater than a dog think that the feds will not somehow screw up the Internet with their regulations?

    Oh, and don’t give me this crap that it is all Obama’s fault or it is Bush’s fault. The Ds and Rs only differ in name. They both ram it up our rears with equal amounts of gusto.

      1. What is wrong with the way the Internet has been working right now? The bandwidth has been growing, the speeds have been getting faster and faster, and the prices have been coming down as more and more competition enters providing more ways of connecting to the Internet.

        Ah, the beauty of the free market and the invisible hand of millions of people making free choices of what THEY want without the assistance of bureaucrats sticking their noses into their decisions.

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