The Federal Communications Commission's new net neutrality rules are now almost a week old, and the fighting over them has just begun. Republicans vow they'll kill the FCC's move in Congress, calling it a blow to personal liberty and small government.
Meanwhile the reform outfit Free Press has dubbed the Commission's Order "Not Neutrality" and a "textbook example of industry capture of a federal agency." The group is particularly disappointed that the rules exempt wireless broadband from its unreasonable discrimination ban and is lining up supporters for a new battle to get stronger regulations.
And this is just the beginning. Even before full rules were published on Friday, there was a semi-major brouhaha over what the FCC Order meant when it mentioned the Android open operating system in its discussion about mobile broadband.
But amidst all the fervor over this decision, it occurred to us that, pending its effective date of release, anybody will be able to file a formal or informal net neutrality complaint with the FCC, based on its new rules. Here's what the Commission's Order says about this process, and how the FCC's complaint system currently works.
Informal complaints
There are two kinds of gripes you can make with the FCC: informal and formal. Informal complaints are much easier to submit. The Commission's Order says that end users and edge providers can file them via the agency's Consumer and Government Affairs informal complaint form, and the FCC will then look into the matter.
The problem right now is that the form doesn't have a specific section to express concerns about possible content blocking or unreasonable discrimination by ISPs. The FCC says its Consumer Division will soon "make available resources explaining these rules and facilitating the filing of informal complaints."
In the meantime, we're guessing that the adventurous will maneuver through the online section via the following path—from "Internet Service and VoIP" to "Billing, Service, Availability," and from there to the formatted online form. Or complainers will access the Commission's Quality of Service complaint form (PDF) and just print it and fill it out by hand.
Once completed, parties can submit this sort of protest with supplementary documents by e-mail to fccinfo@fcc.gov, by fax to (866) 418-0232, or by postal mail to: Federal Communications Commission, Consumer & Governmental Affairs Bureau, Consumer Complaints, 445 12th Street, SW, Washington, D.C. 20554.
Formal complaints
Under the Commission's new net neutrality rules, anybody can also file a formal complaint charging violation of some aspect of the Order, but unless you're a company, public interest group, or trade association, you probably don't want to go that route. Aside from the $200 filing fee, formal FCC complaints are like court hearings. They've got specific procedural, appearance, and docket filing rules. Lawyers usually get involved. The process is not for the faint of heart.
According to the Order, in stage one of a formal net neutrality grievance, the complainant must first inform the "defendant" ISP in writing that they are taking this step, describe the charges, and wait for the company to provide an answer, to which the complainant can file a reply.
Defendants must deliver their answer within 20 days of receiving the complaint. Replies must be filed within 10 days of receiving the broadband provider's response.
"In some cases, the facts might be uncontested," the Order notes, "and the proceeding can be completed based on the pleadings. In other cases, a thorough analysis of the challenged conduct might require further factual development and briefing."
Complainants should keep in mind that they bear the burden of proving some kind of violation the agency's rules, the FCC says. But the broadband provider "must answer each claim with particularity and furnish facts, supported by documentation or affidavit, demonstrating the reasonableness of the challenged practice. At that point, the complainant will have the opportunity to demonstrate that the practice is not reasonable. Should experience reveal the need to adjust the burden of proof in open Internet disputes, we will do so as appropriate."
Appropriate enforcement action?
How will the Commission decide these cases? The agency promises that in stage two it will draw from its engineering, legal, and economic staff, and request help from various relevant standard-setting groups. The FCC's administrative law judges may be brought into the process to preside over a hearing on the question.
"Further, in order to facilitate prompt decision-making, when possible we will resolve open Internet formal complaints at the bureau level, rather than the Commission level," the Order adds. "Commission level" means a five-commissioner vote on the complaint, which would be a very public (and very political) way of resolving the problem—probably the last way that the FCC wants to get these complaints resolved.
Finally, the FCC reserves the right to lodge a complaint on its own dime. "Should the Commission find that a broadband Internet provider is engaging in activity that violates the open Internet rules, we will take appropriate enforcement action, including the issuance of forfeitures," the enforcement section of the Order warns.
One caveat—if you file an informal net neutrality complaint with the FCC, but don't like the Commission's response, you can go the formal route—but only after waiting six months.
Listing image by Erin Stevenson O'Connor
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