The Federal Communications Commission will vote on rules that will govern the activities of Internet service providers by imposing net neutrality rules under Title II of the Communications Act. FCC Chairman Tom Wheeler told an audience at the Consumer Electronics Show in Las Vegas on Jan. 8 that the new rules will be circulated to commission members starting on Feb. 5, with a vote scheduled for Feb. 26.
The announcement is the culmination of a long series of moves by the FCC to get regulatory control of the Internet. Previous efforts to control the terrestrial Internet have been overturned in the courts, which found that the FCC lacks the legislative authority for such control.
The FCC has interpreted the latest court decisions as allowing FCC control if certain requirements are met. To meet those requirements, the FCC has turned to Title II, which is the set of rules governing wireline communications, such as telephone service.
However, Wheeler said that the FCC will officially forebear enforcement of portions of title II that he says don’t make sense for ISPs, including the requirement to file proposed rate changes with state regulators. Wheeler noted that wireless Internet providers, primarily mobile phone carriers, already operate under such rules.
Wheeler’s proposals would eliminate throttling, payment for extra bandwidth and other current practices that net neutrality advocates find objectionable. However, Wheeler also came out in favor of what he calls “Over the Top” networking, in which customers make initial connections over the Internet for delivery of services over a parallel private network.
This would mean, for example, that you could order a movie from Netflix over the Internet, but the actual movie would travel over a different network until it reached your router, at which point it would travel over your private network to your computer or television.
The problem, which Wheeler didn’t really discuss, is whether the FCC has the legal authority to decide that ISPs are covered by Title II. While President Barack Obama has said that he wants it handled this way, it’s not the president who makes this determination.
The government body that actually controls this is Congress, and for the FCC to have the authority with certainty, the House of Representatives and the Senate must pass legislation giving the FCC that specific authority.
So far, Congress hasn’t passed such legislation. However, there is reportedly activity in the U.S. Senate Commerce Committee that could change things. The ranking member of the committee, Sen. Bill Nelson, D-Fla., is apparently in talks with the incoming Commerce Committee chairman, John Thune, R-S.D., to propose legislation that would enable the FCC to proceed according to the plan FCC Chairman Wheeler has in mind.
ISPs, Lawmakers Sure to Oppose FCC Title II Net Neutrality Rules
If Congress passed such legislation, it would eliminate any future court challenges regarding the FCC’s authority regarding network neutrality, but the big question is whether both the House of Representatives and the Senate will approve such legislation. That may be easier said than done.
The big bump in the road to this enabling legislation resides with Senate Republicans, some of whom have said in the past that they’re opposed to net neutrality rules as an impediment to business.
There is even strong doubt that the legislation will even make it to a vote in the Senate, since individual members can move to block it anywhere along the review process. And even if Senate passes the legislation, it has to go to the House for a vote, which is less likely to look on net neutrality rules favorably.
There is a cadre of new members of the House who have announced opposition to net neutrality, and there is a substantial minority who will oppose it simply because the president wants it. While these legislators aren’t in the majority, they can prevent passage of a bill that’s not a priority for the House leadership.
The end result could easily mean that any enabling legislation providing cover for the FCC could be a long way off. Without such legislation, the FCC is open to another round of court challenges, any one of which could scuttle net neutrality for good.
According to Wheeler, a couple of the major ISPs are strongly opposed to the idea of moving ISPs under Title II. Those carriers are likely AT&T and Verizon, both of which have significant businesses in the ISP realm. Comcast, on the other hand, has gone on record as favoring net neutrality, probably because it agreed to it as part of its merger with NBC.
Even if these major ISPs don’t oppose regulation of the Internet under Title II, it is a virtual certainty that some company will. There may well be other court battles as well claiming some other deficiency in how the FCC decides to control the Internet.
The eventual source of the opposition doesn’t matter, but that fact that there is always opposition somewhere does matter. Without authorizing legislation, it’s entirely possible that any one of the potential court challenges could put net neutrality on the sidelines for years.
Regardless of whether you think net neutrality is a good thing, the resulting years of uncertainty about net neutrality will slow down growth and innovation in the U.S. Internet industry, and that’s not a good thing at all.