FCC Passes First Net Neutrality Rules with Major Wireless Exemption in 3-2 Party-Line Vote

The Federal Communications Commission approves the Open Internet Order by a 3-2 party-line vote, establishing the first formal net neutrality regulations but with significant weaknesses that would prove legally vulnerable. FCC Chairman Julius Genachowski’s order established three core rules: transparency in network management, no blocking of lawful content for fixed broadband, and no unreasonable discrimination for fixed providers. However, the rules created a controversial two-tier system that applied much weaker protections to wireless broadband than to fixed-line internet service.

The order’s fundamental flaw was its legal foundation—rather than reclassifying broadband as a telecommunications service under Title II of the Communications Act (common carrier status), the FCC attempted to regulate ISPs under its more limited “ancillary authority.” This approach was taken despite warnings from net neutrality advocates that it would not survive judicial review. The decision to exempt wireless providers from key protections was particularly criticized, given the rapidly growing importance of mobile internet access.

Critics noted that the FCC was essentially creating “two classes of internet access,” with robust protections for home broadband but permitting wireless carriers to block or discriminate against applications and content. This bifurcated approach reflected the telecommunications industry’s lobbying power and the political compromises made to secure the order’s passage. As predicted, the order’s legal framework would collapse in 2014 when the DC Circuit Court ruled in Verizon v. FCC that these protections could only be applied to common carriers, forcing the FCC to pursue Title II reclassification to establish durable net neutrality rules.