FCC Chairman Tom Wheeler on Wednesday formally started the process of reinstating some sort of net neutrality rules, though it's early days and the commission has not actually crafted a revised set of guidelines.
Though the D.C. Circuit Court of Appeals recently struck down the FCC's net neutrality rules, it did so because it did not believe that the commission had the authority to craft such rules. It reaffirmed, however, that the FCC has the "general authority" to oversee broadband providers' treatment of Internet traffic, and it is that part of the ruling that the FCC seized upon today.
The FCC has decided not to challenge the court's decision. Instead, Wheeler said he will ask his fellow commissioners to propose new rules that tackle three parts of the FCC's Open Internet rules.
First, these rules should enforce and enhance the transparency rule, which required ISPs to be open about their network management processes. Wheeler said the court's decision affirmed the transparency portion of the rules, so "we should consider ways to make that rule even more effective," Wheeler said.
Second, the commissioners should consider the "no blocking" part of the rules. "The D.C. Circuit recognized the importance of the Open Internet Order's ban on blocking Internet traffic, but ruled that the Commission had not provided sufficient legal rationale for its existence," Wheeler said. "We will carefully consider how, consistent with the court opinion, we can ensure that edge providers are not unfairly blocked, explicitly or implicitly, from reaching consumers, as well as ensuring that consumers can continue to access any lawful content and services they choose."
Third, Wheeler wants the commission to consider how it can use Section 706 of the Telecom Act to "fulfill the goals of the non-discrimination rule." That basically said ISPs can't discriminate based on application in order to manage their networks. It can slow down its network completely, but couldn't block BitTorrent, for example.
For this part, an FCC official said the agency will look to its data-roaming rules, which it handed down in 2012 and required wireless carriers to offer "reasonable" data roaming rates. Like in the net neutrality case, Verizon sued, again arguing that the FCC doesn't have the authority to regulate such issues. But in Dec. 2012, the U.S. Court of Appeals for the D.C. Circuit sided with the FCC.
According to an FCC official, these data-roaming rules therefore provide guidance as to what is reasonable, like whether a practice would harm competition. That will likely serve as a guide in drafting new net neutrality rules.
One major point of contention during net neutrality talks in 2010 was whether wireless networks would be treated the same as wireline ISPs. Ultimately, the commission decided that they would not, and the FCC suggested today that that would remain the case.
Of course, given that the FCC has not yet drafted its new rules, it's difficult to compare this new way forward to the now-defunct net neutrality rules. The agency does not expect that rules will be written and voted upon until late spring or early summer.
In the meantime, the agency is opening a new docket, dubbed Protecting and Promoting the Open Internet, so the public can submit comments on how the FCC should proceed.
Stakeholders can also comment via an existing docket - Title II - that covers whether the FCC should reclassify broadband as a telecom service. Reclassification is known in DC speak as Title II, but is not favored by ISPs, and would face a fierce battle.
Wheeler is also asking ISPs to continue their commitment to open Internet principles, and said the FCC will look at ways to enhance broadband competition, including municipally owned networks.
Not surprisingly, reaction was swift.
Gene Kimmelman, President and CEO of Public Knowledge
"As the DC Court of Appeals affirmed last month, the Federal Communications Commission (FCC) has authority to protect consumers and innovators online. We are pleased that the FCC plans to protect Internet openness, promote transparency, encourage municipal broadband, and achieve other goals. The recently proposed acquisition of Time Warner Cable by Comcast makes it even more important for the Commission to move expeditiously to reinstate nondiscrimination rules by using all regulatory tools available. While skeptical that the FCC's initial focus on section 706 will yield meaningful results, we are encouraged to see that the FCC plans to keep its 'reclassification' proceeding open. We commend the FCC for launching an effort to promote municipal broadband and other forms of broadband competition. Laws passed at the urging of industry lobbyists limit vital broadband services and competitive entry in 20 states. Cities and towns should be free to build systems, and offer citizens more choices and lower prices."
Free Press President and CEO Craig Aaron
"The FCC can't protect free speech and prevent discrimination under the so-called Section 706 authority discussed in today's announcement. Last month's court decision made that crystal clear ... Reclassifying broadband as a common-carrier service would protect the Internet as a hub for innovation and the exchange of ideas. It would ensure that everyone has a voice and a choice online. Failing to reclassify would have severe consequences over the long term and prolong the uncertainty that has plagued the FCC over the past decade. The FCC has the power to reclassify. Nothing in today's announcement forecloses this better path, but the FCC's reluctance to take it is baffling and short-sighted."
Rep. Anna G. Eshoo, D-California
"Using the FCC's clear authority, as recognized by the D.C. Circuit Court, today Chairman Wheeler has proposed a series of actions that put consumers back in the driver's seat when it comes to their online experience. The proposed FCC actions would enhance transparency for consumers so they know if and when their Internet service provider is slowing down or blocking online content, and include a commitment to restore the protections of the no-blocking and non-discrimination rules. Furthermore, the proposal aims to enhance broadband competition by reducing barriers to municipality-built broadband networks. I wholeheartedly welcome Chairman Wheeler's proposed actions to preserve a free and open Internet, and I look forward to seeing these important steps implemented."
Rep. Doris Matsui, D-Calif.
"I am pleased that Chairman Wheeler is moving forward to preserve the FCC's ability to enforce net neutrality rules. It is critical that all Americans have access to a free and open Internet, free from content blocking and other discriminatory practices. These basic rules of the road are necessary to protect both consumers and innovators. I look forward to working with the FCC and my colleagues in Congress to ensure our broadband ecosystem continues to promote innovation and consumer choice in the marketplace."
NCTA President & CEO Michael Powell
"We appreciate Chairman Wheeler laying out the process for developing a new open Internet framework. The cable industry has always embraced the principles of an open Internet and remain committed to them. We look forward to working with Chairman Wheeler and the Commission on ensuring that American consumers will continue to enjoy a fast, robust and open Internet experience. We continue to believe that the values of an open Internet can be preserved, while avoiding a damaging move to heavier regulation."
The Fiber to the Home (FTTH) Council Americas
"Communities want ultra-high bandwidth networks to drive their economies, care for their residents, and enable robust conversations. While the private sector has undertaken the vast majority of all-fiber deployments, where they don't step up, communities need to be able to get this essential infrastructure. We applaud Chairman Wheeler's call to remove barriers to broadband investment, which will help communities that cannot find willing broadband partners to chart a path for their own solutions."
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