The Federal Communications Commission (FCC) has previously vowed to protect net neutrality, the principle that all traffic on the Internet should be treated equally. But in a new proposal of rules on the topic, following its courtroom defeat to Verizon in January, the FCC has positioned itself as more willing to compromise than intent to take a stand.
While the new draft of the Open Internet Notice on Proposed Rulemaking prevents Internet service providers (ISPs) from slowing down traffic (such as those of services that compete with its own), it does allow companies to pay extra for a bit of a boost.
FCC Chairman Tom Wheeler, in an April 24 blog post, objected to unflattering early reports about what the new draft will include and clarified that it will propose:
“That all ISPs must transparently disclose to their subscribers and users all relevant information as to the policies that govern their network;
“That no legal content may be blocked; and
“That ISPs may not act in a commercially unreasonable manner to harm the Internet, including favoring the traffic from an affiliated entity.”
Wheeler added that allegations that the new rules will result in anti-competitive price increases for consumers is “unfounded,” and that the “‘commercially unreasonable’ test will protect … harm to competition and consumers stemming from abusive market activity.”
Some backers of net neutrality disagree.
“The FCC is inviting ISPs to pick winners and losers online. The very essence of a ‘commercial reasonableness’ standard is discrimination. And the core of net neutrality is non discrimination,” Michael Weinberg, vice president of Public Knowledge, a consumer advocacy group, said in an April 23 statement anticipating the announcement.
Free Press President and CEO Craig Aaron, in an April 24 statement, accused the FCC of “aiding and abetting” ISPs “in their efforts to destroy the open Internet.”
Aaron continued, “Giving ISPs the green light to implement pay-for-priority schemes will be a disaster for startups, nonprofits and everyday Internet users who cannot afford these unnecessary tolls. These users will all be pushed onto the Internet dirt road, while deep-pocketed Internet companies enjoy the benefits of the newly created fast lanes.”
Roots of the Debate
In 2011, Verizon sued the FCC, challenging its Open Internet Order, which presents the tenet of net neutrality.
FCC Proposal Angers Net Neutrality Proponents
“Under this principle, consumers can make their own choices about what applications and services to use and are free to decide what lawful content they want to access, create or share with others. This openness promotes competition and enables investment and innovation,” the FCC wrote in an explanation of the Order on its site.
But in the January ruling, the U.S. Court of Appeals for the District of Columbia found that because the FCC doesn’t classify broadband providers as “common carriers,” Verizon isn’t beholden to the anti-discrimination and anti-blocking rules in the Open Internet Order.”
In the Telecommunications Act of 1996, the FCC was given the authority to regulate ISPs as either telecommunications services, which transmit data, or information services, which process data. It chose the latter, though information service companies are treated as common carriers—companies that, unlike private carriers, offer services for the public good, without discrimination.
Following the ruling, many believed the FCC simply needed to change the designation.
“The FCC must craft open Internet [protections] that are not full-fledged common carrier rules. Alternately, if the FCC needs broader authority, it can classify broadband as a title 2 common carrier service. Both of these are viable options,” Harold Feld, senior vice president Public Knowledge, said in a Jan. 14 statement.
Michael Copps, a former FCC commissioner, released a statement the same day. “Without prompt action by the Commission to reclassify broadband,” Copps said, “this awful ruling will serve as a sorry memorial to the corporate abrogation of free speech.”
Free Press’ Aaron, in his statement on April 24, also called for the FCC to classify ISPs as telecom carriers under Title II of the Communications Act.
“This is not Net Neutrality,” wrote Aaron. “It’s an insult to those who care about preserving the open Internet to pretend otherwise. The FCC had an opportunity to reverse its failures and pursue real Net Neutrality by reclassifying broadband under the law. Instead, in a moment of political cowardice and extreme shortsightedness, it has chosen this convoluted path that won’t protect Internet users.”