NEWS ANALYSIS: The FCC's latest effort to set up network neutrality could be derailed by certain opposition from ISPs and federal lawmakers.
The Federal Communications Commission will vote on rules that will govern the activities of Internet service providers by imposing net neutrality rules under Title II of the Communications Act. FCC Chairman Tom Wheeler told an audience at the Consumer Electronics Show
in Las Vegas on Jan. 8 that the new rules will be circulated to commission members starting on Feb. 5, with a vote scheduled for Feb. 26.
The announcement is the culmination of a long series
of moves by the FCC to get regulatory control of the Internet. Previous efforts to control the terrestrial Internet have been overturned in the courts, which found that the FCC lacks the legislative authority for such control.
The FCC has interpreted the latest court decisions as allowing FCC control if certain requirements are met. To meet those requirements, the FCC has turned to Title II, which is the set of rules governing wireline communications, such as telephone service.
However, Wheeler said that the FCC will officially forebear enforcement of portions of title II that he says don't make sense for ISPs, including the requirement to file proposed rate changes with state regulators. Wheeler noted that wireless Internet providers, primarily mobile phone carriers, already operate under such rules.
Wheeler's proposals would eliminate throttling, payment for extra bandwidth and other current practices that net neutrality advocates find objectionable. However, Wheeler also came out in favor of what he calls "Over the Top" networking, in which customers make initial connections over the Internet for delivery of services over a parallel private network.
This would mean, for example, that you could order a movie from Netflix over the Internet, but the actual movie would travel over a different network until it reached your router, at which point it would travel over your private network to your computer or television.
The problem, which Wheeler didn't really discuss, is whether the FCC has the legal authority to decide that ISPs are covered by Title II. While President Barack Obama has said that he wants it handled this way, it's not the president who makes this determination.
The government body that actually controls this is Congress, and for the FCC to have the authority with certainty, the House of Representatives and the Senate must pass legislation giving the FCC that specific authority.
So far, Congress hasn't passed such legislation. However, there is reportedly activity in the U.S. Senate Commerce Committee that could change things. The ranking member of the committee, Sen. Bill Nelson, D-Fla., is apparently in talks with the incoming Commerce Committee chairman, John Thune, R-S.D., to propose legislation that would enable the FCC to proceed according to the plan FCC Chairman Wheeler has in mind.