FCC Title II Rule Making Proposal Drafted to Stimulate Public Comment

NEWS ANALYSIS: For the first time in recent memory the Federal Communications Commission publicly releases the first draft of a Notice of Proposed Rulemaking well in advance of a meeting that will air the proposals.

Net Neutrality Stay

Federal Communications Commission Chairman Ajit Pai kept his word that the FCC would conduct its deliberations in public when he ordered the public release of an official notice that its preparing to change the rules that regulate U.S. internet service providers.

However, it’s worth noting that notice didn't follow the procedure followed by the previous administration when all the public saw was the final approved rules that had been discussed in private by the commission members.

The NPRM released April 27 consists of 130 paragraphs, most of which contain several questions each about what the public thinks the FCC should do. This approach to an NPRM is unprecedented. While every such notice has a public comment period, they are not typically worded in such a way to specifically solicit the public’s ideas.

What’s also new is that the NPRM is written so that it says what the FCC thinks is the right answer, but then asks a series of questions to commenters regarding their agreement and their suggestions for a different approach.

Here’s a lengthy example from Paragraph 85: “What are the trade-offs in banning business models dependent on paid prioritization versus allowing them to occur when overseen by a regulator or industry actors? Is there a risk that banning paid prioritization suppresses pro-competitive activity? For example, could allowing paid prioritization give Internet service providers a supplemental revenue stream that would enable them to offer lower-priced broadband Internet access service to end-users? What would be the impacts on new startups and innovation? Does a no-paid-prioritization rule harm the development of real-time or interactive services? Could allowing paid prioritization enable certain critical information, such as consumers’ health care vital signs that are being monitored remotely, to be transmitted more efficiently or reliably? What other considerations mitigate any potential negative impacts from business models like paid prioritization? Should the Commission impose restrictions on these business models at all?”

The reason I picked that specific paragraph is because paid prioritization is a real hot button issue in net neutrality discussions, with the assumption that all paid prioritization is bad. But as the question in the NPRM points out, suppose it’s critical medical information? This is the problem with many of the net neutrality discussions that are coming out in response to the FCC’s actions; they are absolutist—all or nothing propositions.

It’s also worth noting that a number of commentators are equating Title II with net neutrality. The reality is that they aren’t the same thing. While the FCC has been struck down in the past when it created such rules, that’s only because the commission acted without legislative backing.

But right before the Title II reclassification in February 2015 there was a bipartisan bill working its way through Congress that would have provided a real basis for net neutrality.

That bill had enough sponsors and was well on its way to passage when the Title II action made it moot. Had it passed, the FCC’s problems with net neutrality would have gone away.

The problem, unfortunately, is that the White House released a video on YouTube demanding that the FCC reclassify the internet as a common carrier. This was an interference with the operations of an independent agency that’s supposed to be beyond the influence of politics, but in this case, the FCC Chairman Tom Wheeler was eager to please the White House, so this change was enacted.

Since then, a number of observers have noted that the NPRM leading up to the reclassification had received millions of comments demanding net neutrality. But what those observers don’t mention is that the NPRM that they were commenting on was dramatically different than what actually happened. For example, the comments were related to the draft legislation that was making its way through Congress and had nothing to do with the Title II reclassification.

What’s going to happen now is that the commission will vote on the proposed NPRM at its May 18 meeting and will in all likelihood pass it—probably on a party line vote. After that, the NPRM must be published in the Federal Register. When that happens, the formal comment period will open and anybody can comments on the proposal. After that there will be a reply period and then a rebuttal period.

Once the comments have been considered by the FCC, the NPRM will be rewritten to reflect the public comments. That results in a Report and Order and the change becomes a formal regulation. If the regulation depends on Congressional action, such as legislation creating a basis for net neutrality, then the regulation will note that.

Meanwhile, commenters around the internet are suggesting that the NPRM if adopted will kill net neutrality. That simply isn’t true, but it does provide an important lesson in fake news. This is one situation where it really is important to read the NPRM to see what it actually says rather than reading a blog entry filled with hysteria.

When you read the draft of the NPRM released today, you’ll see that it does nothing to end net neutrality. What it does is ask page after page of questions that commenters should address. While it’s still possible that the FCC could decide to end net neutrality, it would be subject to the same constraints as other FCC actions and subject to congressional review.

Yes, those constraints do mean potential lawsuits. In this case the commission staff giving today’s press briefing predicted that there would be lawsuits. But in Washington, at least, there are always lawsuits. This would be just one more.

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...