Tom Wheeler, the chairman of the Federal Communications Commission, doesn’t plan to roll over and accept a federal court ruling striking down the agency’s net neutrality regulations.
“The great revolution in the Internet is how it empowers individuals to both consume and create,” Wheeler said during a speech Thursday. “To do so requires an accessible and open Internet, and we will fight to preserve that capability.”
He said the FCC will “accept the court’s invitation to revisit the structure of the rules that it vacated.”we accept the court’s invitation to revisit the structure of the rules that it vacatedaccept the court’s invitation to revisit the structure of the rules that it vacated
But it remains unclear what step Wheeler plans next to try to salvage the rules.
The D.C. Circuit Court of Appeals sided with a lawsuit from Verizon on Tuesday, concluding that the FCC acted outside of its authority when it enacted net neutrality, formally called the Open Internet Order, in 2010.
The regulations bar Internet service providers from blocking websites or from speeding up or slowing down any sites.
The decision could allow Internet providers to force sites like Netflix, Google or Amazon to pay special fees or see their sites slowed to a crawl. Providers could also block sites entirely.
Supporters of net neutrality argue that the Internet should be an open platform where all sites compete equally. They fear that small start-ups would be unable to pay for Internet fast lanes and could be prevented from even getting off the ground.
But critics, including most Republicans, say the government shouldn’t be involved in micromanaging the business decisions of Internet providers. They argue that there’s nothing wrong with Internet providers, who have invested billions of dollars in infrastructure, from trying to recoup some of the costs from Web firms who are making money using their networks.
“The court invited the commission to act, and I intend to accept that invitation,” Wheeler said in his speech Thursday before the Minority Media & Telecommunications Council in Washington.
The court made it clear that the FCC’s legal problems stem from its decision during the Bush administration to classify broadband Internet as an “information service.” Congress has granted the FCC very limited authority over information services.
But the FCC could potentially save the rules by reclassifying broadband as a “telecommunications service” — which it has broad power to regulate.
That move, however, would spark a monumental fight with congressional Republicans, who fear the FCC would be trying to takeover the Internet.
A protracted battle with Republicans could derail all of the other items on Wheeler’s agenda.
Although reclassification would be the surest way to save the rules, it’s not Wheeler’s only option. He could also first appeal the decision to the full D.C. Circuit or to the Supreme Court.
Or he could re-write the rules under the current classification to try to satisfy the court. But that would almost certainly mean watering them down and would likely still face Republican resistance.
Wheeler could also wait for an abuse to occur and then try to enforce the principle of net neutrality on a case-by-case basis under the agency’s other authorities. But any sanction would face immediate legal challenges, and it’s unclear the FCC could win in court.
The one option Wheeler seems to be ruling out is to do nothing and accept defeat.
“Make no mistake about it, our job is to ensure growth and innovation through an open Internet,” Wheeler said.
Verizon and other Internet providers issued statements in the wake of the court’s ruling saying they are committed to an open Internet and have no plans to block websites. They didn’t, however, explicitly rule out charging sites for faster service.
Wheeler said the FCC has “noted with great interest” the Internet providers’ statements and that the commission will “take them up on their commitment.”
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