FCC Seeks Consensus on New Effort to Make Network Neutrality Rules

NEWS ANALYSIS: The Federal Communications Commission says it will attempt to write new network neutrality rules with the legal grounding to pass federal court review.

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.

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...