FCC Moves to Revive Net-Neutrality Rules

The agency will try to protect access to Netflix, Google, and other websites.

 Ethernet cables lead to a server at the Rittal stand at the 2013 CeBIT technology trade fair the day before the fair opens to visitors on March 4, 2013 in Hanover, Germany.
National Journal
Brendan Sasso
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Brendan Sasso
Feb. 19, 2014, 6:07 a.m.

The Fed­er­al Com­mu­nic­a­tions Com­mis­sion an­nounced a plan Wed­nes­day to en­act new net-neut­ral­ity reg­u­la­tions aimed at en­sur­ing that In­ter­net ser­vice pro­viders can’t choke off ac­cess to web­sites such as Net­flix, Google, and Skype.

Sup­port­ers of net neut­ral­ity ar­gue that the In­ter­net should be an open plat­form where all sites are treated equally. But Re­pub­lic­ans have long cri­ti­cized the concept for un­ne­ces­sar­ily re­strict­ing the busi­ness choices of In­ter­net pro­viders.

Without net-neut­ral­ity rules, In­ter­net pro­viders might slow down ac­cess to par­tic­u­lar web­sites un­less they pay for spe­cial In­ter­net “fast lanes.”

The FCC’s new rules, which have not yet been writ­ten, are un­likely to be as strong as the old reg­u­la­tions, which the U.S. Court of Ap­peals for the D.C. Cir­cuit struck down last month.

FCC Chair­man Tom Wheel­er chose not to re­clas­si­fy broad­band pro­viders as “com­mon car­ri­ers” — which would have likely al­lowed the agency to re­in­state the old rules in their en­tirety but would have sparked a massive fight with con­gres­sion­al Re­pub­lic­ans.

The agency also an­nounced it will not ap­peal the court’s rul­ing.

The old rules, en­acted in late 2010 by Wheel­er’s pre­de­cessor, Ju­li­us Gen­achow­ski, barred In­ter­net ser­vice pro­viders from block­ing or dis­crim­in­at­ing against web­sites. The rules were a 2008 cam­paign prom­ise from Pres­id­ent Obama, who has re­peatedly stated his sup­port for pro­tect­ing an open In­ter­net since tak­ing of­fice. But Ve­r­i­zon sued, claim­ing the agency over­stepped its au­thor­ity.

Last month, the D.C. Cir­cuit struck down the rules, say­ing the FCC was in­ap­pro­pri­ately treat­ing broad­band pro­viders as “com­mon car­ri­ers.” Tra­di­tion­al phone lines, rail­roads, air­lines, and oth­er ser­vices are con­sidered com­mon car­ri­ers and must of­fer ser­vice to every­one.

But the court also up­held broad FCC au­thor­ity to reg­u­late broad­band In­ter­net un­der Sec­tion 706 of the Tele­com­mu­nic­a­tions Act. The pro­vi­sion al­lows the agency to en­cour­age the de­ploy­ment of broad­band net­works and pro­mote com­pet­i­tion.

Lib­er­al ad­vocacy groups had urged the FCC to re­clas­si­fy broad­band as a com­mon car­ri­er ser­vice and re­in­state the rules. The move would have giv­en the agency sweep­ing reg­u­lat­ory power over broad­band pro­viders. Re­pub­lic­ans fiercely op­pose that op­tion, however, fear­ing that the agency would try to take over con­trol of the In­ter­net.

Free Press, a lib­er­al ad­vocacy group, ac­cused Wheel­er of cav­ing to pres­sure from Re­pub­lic­ans and in­dustry groups.

“If the agency really wants to stop cen­sor­ship, dis­crim­in­a­tion, and web­site block­ing, it must re­clas­si­fy broad­band,” Free Press Pres­id­ent Craig Aaron said in a state­ment.

Al­though Wheel­er chose to re­write the rules un­der Sec­tion 706, he said the the op­tion of re­clas­si­fy­ing broad­band is still “on the table.”

Wheel­er said the goal of the new rules will still be to pre­vent In­ter­net pro­viders from block­ing or dis­crim­in­at­ing against web­sites. But the FCC will likely have to wa­ter down the nondis­crim­in­a­tion re­quire­ment, in par­tic­u­lar, to sur­vive fu­ture court chal­lenges.

FCC of­fi­cials said the agency will rely on a sep­ar­ate court rul­ing in­volving data-roam­ing reg­u­la­tions in which the D.C. Cir­cuit said the FCC has the power to re­quire com­pan­ies to of­fer “com­mer­cially reas­on­able terms.”

The agency will likely still be able to crack­down on an­ti­com­pet­it­ive be­ha­vi­or — such as if a broad­band pro­vider like Ve­r­i­zon slows Net­flix to a crawl to en­sure that cus­tom­ers still sub­scribe to cable-TV of­fer­ings. But it re­mains un­clear wheth­er the rules will en­tirely bar on­line dis­crim­in­a­tion. Pro­viders may be able to be­gin ex­per­i­ment­ing with new busi­ness mod­els in which they charge web­sites for pri­or­ity ac­cess to users.

Con­sumer ad­vocacy groups have warned that such a sys­tem would ru­in the open nature of the In­ter­net and han­di­cap small start-ups that can’t af­ford to pay In­ter­net tolls.

The new rules will ex­pand the trans­par­ency re­quire­ments of the ori­gin­al net-neut­ral­ity or­der, Wheel­er said. The re­quire­ments, which the court up­held, re­quire In­ter­net pro­viders to pub­licly dis­close how they man­age In­ter­net traffic.

The re­quire­ments al­low In­ter­net cus­tom­ers as well as Web com­pan­ies to know how dif­fer­ent pro­viders treat their traffic.

Wheel­er said the FCC will also look in­to oth­er op­por­tun­it­ies to pro­mote com­pet­i­tion for In­ter­net ser­vice, such as over­turn­ing leg­al re­stric­tions on the abil­ity of cit­ies and town to of­fer broad­band.

Con­gres­sion­al Demo­crats ap­plauded Wheel­er for mov­ing to pro­tect the open In­ter­net. But he will have to over­ride Re­pub­lic­an op­pos­i­tion to en­act the new rules.

Ajit Pai and Mi­chael O’Ri­elly, the two Re­pub­lic­an mem­bers of the five-mem­ber com­mis­sion, is­sued state­ments warn­ing that the FCC is still act­ing without ad­equate leg­al au­thor­ity.

But Wheel­er ar­gued that he will craft the new rules to meet the re­quire­ments of the court’s de­cision.

“The FCC must stand strongly be­hind its re­spons­ib­il­ity to over­see the pub­lic in­terest stand­ard and en­sure that the In­ter­net re­mains open and fair,” he said.

“The In­ter­net is and must re­main the greatest en­gine of free ex­pres­sion, in­nov­a­tion, eco­nom­ic growth, and op­por­tun­ity the world has ever known. We must pre­serve and pro­mote the In­ter­net.”

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