FCC NPRM Contains Many Questions, Few Solid Net Neutrality Proposals

NEWS ANALYSIS: The Federal Communications Commission has produced a document that asks for comments and suggestions, but which contains few proposed rules for network neutrality.

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.

Wayne Rash

Wayne Rash

Wayne Rash is a freelance writer and editor with a 35 year history covering technology. He’s a frequent speaker on business, technology issues and enterprise computing. He covers Washington and...