FCC Chief Unveils Sweeping Net-Neutrality Rules

The move is a devastating blow to Internet providers and a stunning victory for Internet activists.

FCC Chairman Tom Wheeler
National Journal
Brendan Sasso
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Brendan Sasso
Feb. 4, 2015, 6:24 a.m.

The Fed­er­al Com­mu­nic­a­tions Com­mis­sion plans to en­act Pres­id­ent Obama’s pro­pos­al for net-neut­ral­ity reg­u­la­tions that would claim ex­pans­ive new powers over In­ter­net pro­viders.

In an op-ed in the tech­no­logy magazine Wired on Wed­nes­day, FCC Chair­man Tom Wheel­er said his rules will en­sure “the rights of in­ter­net users to go where they want, when they want, and the rights of in­nov­at­ors to in­tro­duce new products without ask­ing any­one’s per­mis­sion.”

He plans to fully ap­ply “bright-line rules” to In­ter­net con­nec­tions both at home and on mo­bile devices.

The move is a dev­ast­at­ing blow to In­ter­net pro­viders such as Com­cast, Ve­r­i­zon, and AT&T; they warn that treat­ing the In­ter­net like a util­ity will strangle in­vest­ment, lead­ing to worse ser­vice for every­one. They have all vowed to fight the rules in court.

But it’s a stun­ning vic­tory for net-neut­ral­ity ad­voc­ates, who or­gan­ized a massive pub­lic cam­paign over the past year to pres­sure the FCC to en­act strong reg­u­la­tions. More than 4 mil­lion people filed com­ments with the FCC, the most for any pro­ceed­ing ever. In Novem­ber, Obama sided with the act­iv­ists and urged the FCC, an in­de­pend­ent agency, to en­act the “strongest pos­sible” rules.

Wheel­er will share his draft reg­u­la­tions with the four oth­er FCC com­mis­sion­ers Thursday, with a fi­nal vote set for Feb. 26.

“The In­ter­net must be fast, fair, and open. That is the mes­sage I’ve heard from con­sumers and in­nov­at­ors across this na­tion,” Wheel­er wrote in the op-ed. “That is the prin­ciple that has en­abled the In­ter­net to be­come an un­pre­ced­en­ted plat­form for in­nov­a­tion and hu­man ex­pres­sion. And that is the les­son I learned head­ing a tech start-up at the dawn of the In­ter­net age. The pro­pos­al I present to the com­mis­sion will en­sure the In­ter­net re­mains open, now and in the fu­ture, for all Amer­ic­ans.”

He plans to ban In­ter­net pro­viders from in­ten­tion­ally block­ing or slow­ing down any leg­al on­line con­tent. He would also bar pro­viders from char­ging web­sites for ac­cess to spe­cial In­ter­net “fast lanes.” The pro­viders would be al­lowed to en­gage in “reas­on­able net­work man­age­ment” — but not if the goal is to gain a busi­ness edge.

The pro­pos­al also in­cludes a catchall pro­vi­sion to ad­dress unanti­cip­ated fu­ture ab­uses: In­ter­net pro­viders would not be al­lowed to “harm” con­sumers or web­sites.

Wheel­er plans to clas­si­fy broad­band as a “tele­com­mu­nic­a­tions ser­vice” un­der Title II of the Com­mu­nic­a­tions Act, which would grant his agency broad new au­thor­it­ies. Net-neut­ral­ity ad­voc­ates ar­gue that the move is the only way to en­act rules that can sur­vive leg­al chal­lenges.

But broad­band pro­viders fear the de­cision could lead to new reg­u­la­tions that have little to do with pro­tect­ing an open In­ter­net. Title II, which the FCC has long used to reg­u­late land­line phones, in­cludes more than 100 pages of rules and pro­ced­ures de­signed to en­sure uni­ver­sal ac­cess and fair prices.

In the op-ed, Wheel­er said he will “mod­ern­ize Title II, tail­or­ing it for the 21st cen­tury.” He will waive pro­vi­sions con­trolling prices and re­quir­ing the pro­viders to al­low com­pet­it­ors use their net­works. The com­mis­sion also does not plan to im­me­di­ately im­pose fees on monthly In­ter­net bills, as it does on phone bills.

But the FCC will in­voke pro­vi­sions re­quir­ing broad­band pro­viders to pro­tect the pri­vacy of their cus­tom­ers and en­sure ac­cess for people with dis­ablit­ies.

The pro­pos­al would also give the FCC the au­thor­ity for the first time to po­lice dis­putes about con­ges­tion on the backend of the In­ter­net. Web­sites will be able to file com­plaints with the FCC if they be­lieve pro­viders aren’t of­fer­ing reas­on­able ac­cess to load traffic onto their net­works. Net­flix, which has had to pay ma­jor pro­viders in re­cent months for dir­ect-con­nec­tion deals, cel­eb­rated the an­nounce­ment and said it would have filed com­plaints if the reg­u­la­tions had been avail­able.

The FCC also plans to take a case-by-case ap­proach in con­sid­er­ing policies from cel­lu­lar pro­viders to ex­empt cer­tain web­sites or ser­vices from monthly data caps.

The rules won’t be fi­nal­ized un­til the FCC votes on Feb. 26. The com­mis­sion’s two Re­pub­lic­ans are ex­pec­ted to vote against the rules, but either of the two Demo­crats, Jes­sica Rosen­wor­cel and Mignon Cly­burn, could push for al­ter­a­tions.

The FCC first en­acted net-neut­ral­ity rules in 2010, but a fed­er­al court struck them down last Janu­ary. Wheel­er ini­tially pro­posed new rules last May that would not have re­lied on the stronger au­thor­ity in Title II, but he re­worked them in the face of the massive pub­lic back­lash.

Wheel­er faced blis­ter­ing per­son­al at­tacks over his ini­tial pro­pos­al, with many people con­tend­ing he was a shill for the broad­band in­dustry. He was the head of the main cable lob­by­ing group from 1976 to 1984 and the head of the wire­less in­dustry lobby from 1992 to 2004.

But in the op-ed, Wheel­er ex­plained that his views on net neut­ral­ity were shaped by his ca­reer as an in­vestor and ex­ec­ut­ive for small start-ups. He was the pres­id­ent of NABU, a com­pany that de­livered high-speed data over cable TV lines. But the start-up failed be­cause cable pro­viders re­fused ac­cess to their net­works, he said.

“NABU went broke while AOL be­came very suc­cess­ful. Why that is high­lights the fun­da­ment­al prob­lem with al­low­ing net­works to act as gate­keep­ers,” Wheel­er wrote.

Re­pub­lic­ans in Con­gress are scram­bling to come up with their own le­gis­lat­ive com­prom­ise on net neut­ral­ity to avoid util­ity-style au­thor­ity un­der Title II. The lead­ers of the House and Sen­ate Com­merce com­mit­tees have draf­ted le­gis­la­tion that would ban many of the same be­ha­vi­ors as Wheel­er’s rules would, such as block­ing web­sites or char­ging for faster ser­vice.

But the bill would also re­peal much of the FCC’s au­thor­ity over the In­ter­net out­side of net neut­ral­ity, and Demo­crats have so far been res­ist­ant to work with Re­pub­lic­ans on it.

Sen­ate Com­merce Com­mit­tee Chair­man John Thune, a South Dakota Re­pub­lic­an, called the pro­pos­al a “power grab for the fed­er­al gov­ern­ment” that will “ul­ti­mately make the In­ter­net more ri­gid and less in­nov­at­ive.”

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