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By now you’ve heard the alarmist stories by various groups claiming that the FCC meeting on May 15 ended network neutrality forever.
You’ve likely heard the gnashing of teeth by groups with a point of view that FCC Chairman Tom Wheeler was somehow violating his trust as chairman and violating the trust placed in his boss, President Barack Obama, to maintain an open Internet. It should be no surprise by now that those stories and claims are wrong.
In reality the FCC’s monthly open meeting adopted a Notice of Proposed Rulemaking that attempted a nearly impossible balancing act. The NPRM on one hand attempted to keep the Internet free and open to users, while also trying to satisfy a series of requirements and findings by the federal courts that essentially said that the FCC could not require net neutrality under the current rules. The anti-blocking and anti-discrimination provisions of the current broadband rules exceeded the FCC’s authority, the court said.
The problem began years ago when the FCC attempted to free the Internet from the restrictions of being a common carrier under Section 706 of the Communications Act. Under Title II of the Communications Act, Internet providers were common carriers and were treated as if they were phone companies.
The change to allow broadband providers of Internet services to be information services rather than common carriers meant that those providers had the flexibility to be more innovative than they would be if they were classified as common carriers. But the new classification as an information service means that common carrier rules can’t apply.
The problem is to ensure net neutrality, the FCC has to use common carrier rules, and those rules don’t apply to information services. This meant that after the federal courts overturned the FCC’s net neutrality rules in early 2014, carriers were free of those restrictions. As you’d expect, carriers, especially cable companies, wasted no time in finding ways to turn things to their advantage.
It didn’t take long for those carriers to start blocking or slowing traffic from sites they didn’t like and to start doing pay for priority with services such as Netflix. So what to do? In a significant move, FCC Chairman Tom Wheeler decided to ask for help—from everyone.
This means that there’s little to look at in terms of proposed rules for an Open Internet. Instead, there are discussions of scenarios and page after page of questions. Those questions cover topics from trying to decide what constitutes reasonable network management to whether the FCC should move broadband providers back to common carrier status.
Make no mistake—moving all or part of the Internet to common carrier status is being strongly considered.
FCC NPRM Contains Many Questions, Few Solid Net Neutrality Proposals
“If the commission were to ultimately rely on a source of authority other than section 706 to adopt a legal standard for broadband provider practices, such as Title II,” the commission asks in the NPRM, “we seek comment on whether and, if so, how we should prohibit all, or some, pay-for-priority arrangements, consistent with our authority, to protect and promote Internet openness.”
What’s missing from the NPRM are some detailed and specific proposals for what the new FCC rules might contain, while still staying within the constraints of the federal courts. “In this notice, we propose to adopt rules to protect and promote the open Internet,” the FCC says in its proposal
But how the FCC plans to reach this goal is still not clear. Unlike many NPRMs, this one does not really contain much in the way of what the FCC would actually like to do, which is a big change from past practices in which a completed rule was presented for comment. Now the agency is asking for input as to what it should do from anyone with an interest.
In fact, it almost seems as if the commission is considering a total revamp of how it regulates the big Internet providers. “What factors should the commission keep in mind as it considers whether to revisit its prior decisions? Have there been changes to the broadband marketplace that should lead us to reconsider our prior classification decisions?” the NPRM asks.
What’s important to remember is that, with this chairman, the emphasis of an NPRM is to let people know that the FCC wants to create a new rule, in this case for regulating the Internet. He also is asking people to tell the commission what they actually want in any rules that are made.
This is different from past practices in which the rule was made, essentially cast in stone, and then made available for comments. This apparent attempt to find a grand consensus is something new at the FCC.
As far as to what Tom Wheeler wants, what he says is this: “I strongly support an open, fast and robust Internet. This agency supports an Open Internet. There is ONE Internet. Not a fast Internet, not a slow Internet; ONE Internet.” That doesn’t sound to me like fast lanes for those who can pay and slow lanes for everyone else.
But it’s what Wheeler says next in his statement on the NPRM that makes it clear that this is a work in progress, “What we are dealing with today is a proposal, not a final rule. With this notice we are specifically asking for input on different approaches to accomplish the same goal: an Open Internet.”