FCC Seeks Consensus on New Effort to Make Network Neutrality Rules

By Wayne Rash  |  Posted 2014-02-19

FCC Seeks Consensus on New Effort to Make Network Neutrality Rules

The Federal Communications Commission will try again to establish regulations that uphold "network neutrality" with the legal grounding to withstand review by the federal courts.

FCC Chairman Tom Wheeler said on Feb. 19 that he would use a recent ruling of a federal court as an invitation to use Section 706 of the Telecommunications Act of 1996 to write new rules that uphold network neutrality, which is the principle that Internet service providers should treat all forms of Web data equally and shouldn't block, slow down or charge more to transmit certain types of data.

Wheeler said the commission will start the process to gather public comment on possible new network neutrality regulations in preparation for a ruling later this year.

In January, the U.S. Court of Appeals for the District of Columbia focused on narrow, technical grounds to overturn the FCC's original set of network neutrality rules requiring non-discriminatory access to the Internet. In that ruling the court said that the FCC had the authority to propose rules that would meet the court's test for preventing improper discrimination in Internet access.

The basis for this new direction is the provision in Section 706 that gives the FCC the power to remove barriers to infrastructure deployment, encourage innovation and promote competition.

In a statement released after an FCC meeting on Feb.19, Wheeler said that he wants to propose new rules that would enforce and enhance the transparency rule by requiring ISPs to reveal how they manage traffic. The new rules would also fulfill the no-blocking goal and the anti-discrimination rule.

The FCC has the statutory authority to change the classification of Internet services to common carrier status under Title II of the Telecommunications Act, an action the court has affirmed. This is basically the nuclear weapon of net neutrality rules because it would fundamentally change the rules by which ISPs operate, and make them a highly regulated industry like phone services.

Wheeler made it clear that he intends to keep Title II on the table. However, such a reclassification is sure to invoke a huge fight in Congress, where many Republican representatives are already opposed to net neutrality.

The FCC has also decided not to appeal the Verizon decision in the federal courts. "In light of the Court’s finding that the Commission has authority to issue new rules under Section 706 and the ongoing availability of Title II, the Commission will not initiate any further judicial action in connection with the Verizon decision," Wheeler said in his statement.

It remains to be seen if the FCC can make the new rules stick in light of the court's recent ruling, even if it applies its authority under Title II.

FCC Seeks Consensus on New Effort to Make Network Neutrality Rules

FCC commissioners Mike O'Reilly and Ajit Pai said immediately after the announcement that they think Wheeler's effort is doomed to fail, with Pai comparing it to the movie "Groundhog Day" in which the same events happen repeatedly.

Unlike in previous net neutrality efforts, there is little unanimity about whether the FCC should pursue the course that Wheeler has laid out. Common Cause, for example, says that the FCC should reclassify broadband under Title II. "I continue to believe that Title II reclassification is, by far, the surest and best way to guarantee consumer protections and free speech online. I hope the Commission will get there soon," said former FCC Commissioner Michael Copps, now a special adviser to Common Cause's Media and Democracy Reform initiative.

Meanwhile, Ed Black, president and CEO of the Computer and Communications Industry Association, said that he doesn't necessarily care how the FCC ensures net neutrality, just as long as it does.

"The FCC recognizes that both preserving open Internet access and enhancing competition are essential to ensuring the availability of high speed, affordable access to everything on the Internet for U.S. homes and businesses," Black said in a prepared statement. "We welcome their announcement today and urge them to follow through aggressively and expeditiously."

In a subsequent interview, Black told eWEEK his organization wants to see "an open Internet framework that's a good one, enforceable and predictable. The method of getting there isn't the goal. And I think there's an awful good argument that Title II needs to be explicitly defined in a way to deal with the real problem of Internet access competition issues."

In a sense, the FCC is trying to build public and industry consensus that supports net neutrality regulations under Section 706. While the existing rules were overturned on the grounds that the FCC hadn't set up its rules properly, the court did say that the FCC has the authority to regulate broadband. In addition, two major ISPs, AT&T and Comcast, have gone on record as supporting the FCC's net neutrality rules. Verizon, however, has vowed to fight them.

The FCC, meanwhile, is trying to avoid a huge political fight. This is one of those times when even though the agency theoretically has the authority to reclassify broadband so that it operates like a telephone company, having the authority and using it are two different things.

If the FCC decides to reclassify, there's every likelihood that substantial political opposition will emerge and a battle over the FCC's authority isn't something it wants. However, if the Commission is able to reach a general consensus through its hearing process, it will be in a much stronger position to make its rules stick.

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