The announcement on Feb. 4 by FCC Chairman Tom Wheeler that he was proposing that all broadband communications be placed under the FCC's Title II authority has generated no shortage of comment, much of it by pressure groups that don't seem to have actually read what has been published so far.
In a fact sheet released by the FCC's media staff at the time of the announcement, the Chairman seems to have addressed the issues that drew most of the criticism.
The fact sheet explained that the FCC is planning to enforce certain provisions of Title II for broadband providers, but to forbear from enforcing others that don't really apply to the broadband market. Specifically, the proposal says that the FCC will not impose Universal Service Fund fees or other charges or taxes on broadband providers, which was a major scare tactic of some groups.
In addition, the FCC plans to treat wireless broadband exactly like other broadband, which means eliminating some of the limits of net neutrality that have applied to mobile providers.
Wheeler explained his decision to revise the Internet rules in an OpEd he wrote for Wired, "I am submitting to my colleagues the strongest open Internet protections ever proposed by the FCC," Wheeler wrote.
"These enforceable, bright-line rules will ban paid prioritization, and the blocking and throttling of lawful content and services. I propose to fully apply—for the first time ever—those bright-line rules to mobile broadband. My proposal assures the rights of Internet users to go where they want, when they want, and the rights of innovators to introduce new products without asking anyone’s permission."
In the process, Wheeler said that his plan will work to preserve investment and incentives for the broadband world. "To preserve incentives for broadband operators to invest in their networks," Wheeler said, "my proposal will modernize Title II, tailoring it for the 21st century, in order to provide returns necessary to construct competitive networks. For example, there will be no rate regulation, no tariffs, no last-mile unbundling."
The work by the FCC leading up to the proposal was not as smooth as it might appear from the announcements. The agency had originally put similar rules into place, but a court found that because the FCC hadn't moved broadband under Title II, then it couldn't put rules similar to Title II into place.
However, the courts did suggest that the FCC could accomplish its net neutrality desires by using the "commercial reasonableness" clause of Section 706 of the Communications Act, but this idea was eventually abandoned.
In his OpEd, Wheeler said that he was worried that at some point the idea of commercial reasonableness might be interpreted to mean whatever was reasonable for the broadband providers rather than for the customer.