FCC Moves Closer to Net Neutrality Rules, Major Questions Remain

The FCC has approved Chairman Tom Wheeler's proposal for establishing rules for the Internet, which include the potential for pay-for-priority practices.

The Federal Communications Commission (FCC) voted today to adopt Chairman Tom Wheeler's Open Internet Notice of Proposed Rulemaking. The vote was split along party lines, with Commissioners Mignon Clyburn and Jessica Rosenworcel, Democrats like Wheeler, voting in favor of the notice, and Commissioners Ajit Pai and Michael O'Rielly voting against it.

The vote moves the commission forward in its task of establishing new rules around net neutrality, the practice of treating all Internet traffic equally. The May 15 vote does not confirm any final rules.

Since a U.S. District Court ruled in January that Internet Service Providers (ISPs) don't need to adhere to the FCC's 2010 Open Internet Order because they aren't classified as common carriers—essentially, public utilities—the FCC has been working to get a new set of rules approved, and a contentious debate has ensued over whether and how to reclassify ISPs. One option is to classify them as Title II telecommunications services, which are subject to common carrier regulations.

Also highly debated has been whether ISPs should be allowed to offer faster-than-average services for a fee—a practice referred to as "pay for priority." The proposed notice leaves open the possibility of content providers paying for priority.

Wheeler, who has fervently insisted that the Internet cannot be allowed to discriminate against or stall any traffic but somewhat tiptoed around the issue of prioritization, denounced the idea of a "fast lane" in his closing remarks.

"I don't like the idea of an Internet divided into haves and have-nots, and I will work to see that that does not happen," he said.

Public advocacy group Public Knowledge credited the "outpouring of concern" from the public, businesses and members of Congress for successfully impacting the way the FCC is approaching the rule-making.

"Despite this response, we are convinced that the net neutrality pathway the FCC is exploring remains insufficient to guarantee a truly open and neutral Internet," Michael Weinberg, vice president at Public Knowledge, said in a statement following the vote.

"The FCC's proposal still falls well short of real net neutrality rules," he continued. "It would create a two-tier Internet where 'commercially reasonable' discrimination is allowed on any connections that exceed an unknown 'minimum level of access' defined by the FCC. A two-tier Internet is anathema to a truly open Internet."

George Foote, a partner at Dorsey & Whitney, a law firm that represents utility companies on policy development, said in a statement that the proposed order "does not threaten the Internet, the First Amendment or the capitalist system."

He added, "No company could read today's proposals as an opening to take advantage of consumers. As for the so-called fast lane, all that does is open the door to better or different service for a fee."

Commissioner O'Rielly, during his remarks, called the proposal "absurd," and said the commission is "trying to cast a wider net of authority in which I fear [others] may be ensnarled." He also complained that classifying ISPs as Title II businesses would put companies in the position of "having to ask the government whenever they have to make a business decision."

Clyburn, during her presentation, said that in her 16 years of public service, including her time as acting chair of FCC, while Wheeler was vetted, her mother had never called her with a public policy concern.
"She is smart, thoughtful and engaged, and she is a natural researcher. When she called me to voice concerns [in April], I knew something was wrong," said Clyburn.

"To mom and to all of you, I say this is an issue about promoting issues of democratic free speech," Clyburn added.

Wheeler, thanking the "passionate" people who "feel so strongly about a free and open Internet that they've been sleeping in tents outside the building," said, "I understand this issue in my bones."

He added, "Privileging some network users in a manner that squeezes out some voices cannot happen."

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