Amid Protests, FCC Moves Ahead With Net-Neutrality Rules

The commission votes to advance new regulations on Internet access.

Activists protest outside Federal Communications Commission (FCC) as the commission is about to meet to receive public comment on proposed open Internet notice of proposed rulemaking and spectrum auctions May 15, 2014 at the FCC headquarters in Washington, DC. The FCC has voted in favor of a proposal to reform net neutrality and could allow Internet service providers to charge for faster and higher-quality service.
National Journal
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Brendan Sasso
May 15, 2014, 7:45 a.m.

The Fed­er­al Com­mu­nic­a­tions Com­mis­sion is mov­ing ahead with new reg­u­la­tions that would lim­it the abil­ity of broad­band-ser­vice pro­viders to tamper with In­ter­net traffic.

The net-neut­ral­ity pro­pos­al has sparked a massive pub­lic out­cry be­cause it could al­low pro­viders to charge web­sites for faster ser­vice in some cases. Dozens of pro­test­ers banged drums out­side of the FCC’s headquar­ters, and se­cur­ity guards led out five pro­test­ers who stood up throughout the meet­ing and began shout­ing at the five com­mis­sion­ers.

The Demo­crat­ic mem­bers of the FCC over­rode Re­pub­lic­an op­pos­i­tion to ad­vance the new reg­u­la­tions and be­gin ac­cept­ing pub­lic com­ments. The agency will have to vote again in sev­er­al months to fi­nal­ize the reg­u­la­tions.

“It’s not about wheth­er the In­ter­net must be open,” FCC Chair­man Tom Wheel­er said, “but about how and when we will have rules in place to as­sure an open In­ter­net.”

But even the Demo­crat­ic com­mis­sion­ers voiced ser­i­ous mis­giv­ings about Wheel­er’s pro­pos­al.

“We can­not have a two-tiered In­ter­net, with fast lanes that speed the traffic of the priv­ileged and leave the rest of us lag­ging be­hind,” Com­mis­sion­er Jes­sica Rosen­wor­cel, a Demo­crat, warned. She “con­curred” with the pro­pos­al to move it for­ward but with­held her full sup­port.

Rosen­wor­cel said the agency should have delayed the vote in the face of the out­pour­ing of pub­lic an­ger in re­cent weeks.

“I think we moved too fast to be fair,” she said. “I think as pub­lic ser­vants we have a duty to ac­know­ledge and re­spond to the great tide of pub­lic com­ment­ary that fol­lowed in the wake of the chair­man’s pro­pos­al.”

Com­mis­sion­er Mignon Cly­burn, also a Demo­crat, said she knew “something was just not right” when her moth­er called her to ex­press con­cern about the is­sue.

But Cly­burn noted that there are cur­rently no rules on the books, and said Wheel­er agreed to make last-minute changes to his pro­pos­al to ad­dress some of her con­cerns.

The FCC first en­acted net-neut­ral­ity rules in 2010 that pro­hib­ited In­ter­net ser­vice pro­viders from block­ing web­sites or “un­reas­on­ably” dis­crim­in­at­ing against any traffic. The goal of the rules was to en­sure that no “gate­keep­er” could dis­tort the In­ter­net in fa­vor of cer­tain com­pan­ies or re­strict speech on­line.

But Ve­r­i­zon sued, and a fed­er­al court struck down the rules earli­er this year. The agency is now try­ing to re­write the rules in a way that can sur­vive fu­ture court chal­lenges.

Wheel­er blamed “those that sell In­ter­net con­nec­tions to con­sumers” for for­cing the com­mis­sion back to the draw­ing board.

“Today this agency moves to sur­mount that op­pos­i­tion and to stand up for con­sumers and an open In­ter­net,” he said.

His pro­pos­al would still bar In­ter­net pro­viders from block­ing web­sites. The pro­viders would also be banned from treat­ing In­ter­net traffic in any way that is not “com­mer­cially reas­on­able.”

The com­mis­sion has been vague about what ex­actly would be con­sidered “com­mer­cially reas­on­able.”

Wheel­er em­phas­ized that noth­ing in his pro­pos­al au­thor­izes paid pri­or­it­iz­a­tion. The pro­pos­al asks for com­ment on wheth­er the FCC should ban all paid-pri­or­it­iz­a­tion deals out­right. But the tight­er the FCC reg­u­lates so-called “fast lanes” for com­pan­ies that pay, the harder time it will have de­feat­ing fu­ture law­suits.

“The pro­spect of a gate­keep­er choos­ing win­ners and losers on the In­ter­net is un­ac­cept­able,” Wheel­er said.

The pro­pos­al would re­quire In­ter­net pro­viders to of­fer a “min­im­um level of ser­vice” to all web­sites and would pre­sumptively ban pro­viders from fa­vor­ing “af­fil­i­ated” con­tent. So, for ex­ample, Com­cast could not boost videos on NBC sites (which it owns). 

Lib­er­al ad­vocacy groups have urged the FCC to re­clas­si­fy broad­band In­ter­net as a “com­mon car­ri­er” util­ity un­der Title II of the Com­mu­nic­a­tions Act. The move would give the agency sweep­ing new reg­u­lat­ory powers, in­clud­ing the abil­ity to en­act stronger net-neut­ral­ity rules.

The pro­pos­al asks for com­ment on wheth­er the FCC should use its Title II powers, but Wheel­er has been re­luct­ant to turn broad­band pro­viders in­to util­it­ies. Re­pub­lic­an law­makers and the tele­com in­dustry would wage a polit­ic­al and leg­al war against re­clas­si­fic­a­tion.

The two Re­pub­lic­an FCC com­mis­sion­ers voted against Wheel­er’s pro­pos­al, ex­press­ing skep­ti­cism that the FCC should reg­u­late In­ter­net ac­cess.

Re­pub­lic­an Com­mis­sion­er Ajit Pai ar­gued that Con­gress — not the FCC — should de­cide net neut­ral­ity.

“Every Amer­ic­an who cares about the fu­ture of the In­ter­net should be wary about five un­elec­ted of­fi­cials de­cid­ing its fate,” Pai said.

Com­mis­sion­er Mi­chael O’Ri­elly, the oth­er agency Re­pub­lic­an, called the pro­pos­al a “boon­doggle” and warned it could even­tu­ally lead to reg­u­la­tions of Google, Face­book, and oth­er web­sites.

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