The Federal Communications Commission has put its foot down in favor of an open Internet and local government control over broadband expansion.
In a 3-2 vote on Thursday, Feb. 26, the commission issued a final ruling adopting strong net neutrality rules, reclassifying Internet connectivity as a telecommunications service under Title II of the Communications Act. By relying on Title II, the FCC believes it can use “light-touch” regulation of the Internet to heighten competition among providers and ensure U.S. citizens have unfiltered access to the Web without paid prioritization or speed throttling.
In a second ruling, the FCC also voted in favor of an order pre-empting state laws in North Carolina and Tennessee that have restricted expansion of municipal broadband networks. Under the order, the commission assumes authority under Section 706 of the Communications Act of 1996 to regulate in the public interest.
The FCC’s decision now enables Wilson, N.C., and the Electric Power Board of Chattanooga, Tenn., to seek customers outside of their current boundaries and connect thousands of more citizens to high-speed Internet.
The commission's decision to use Title II to regulate the Internet was cited as a method to prevent service providers from establishing paid prioritization lanes for certain content. The final ruling applies to both wired and wireless Internet connectivity.
Commissioner Mignon Clyburn voted in favor of the rule and said the FCC’s action contains clear guidelines to ensure all content and applications are treated equally. She noted that mobile device users deserve “a robust experience on par with their wired peers,” and believes regulation is necessary to make sure private companies cannot take actions that “circumvent or undermine” open Internet principles.
Commissioner Jessica Rosenworcel also approved of the reclassification, calling the Internet the “most dynamic platform for free speech ever invented.” She stressed the importance of not having a gate keeper that tells Americans what they can and cannot do, and where they can and cannot go, online.
Commissioners Ajit Pai and Michael O’Rielly both dissented, categorizing the FCC’s approval of Title II reclassification of the Internet as an attempt to replace freedom with government control.
Pai noted that dating back to the Clinton administration, every FCC chairman has let the Internet proceed free from utility-style regulation, resulting in its explosive growth. He deadpanned that the use of Title II as bowing to the wishes of President Obama, who stated his preference for the regulatory approach late last year.
Pai added that the order will lead to higher broadband prices, slower speeds and less overall deployment. He gave examples of fees and taxes that will ultimate increase as higher costs for providers will trickle down to consumers.
“President Obama’s plan to regulate the Internet is not the solution to a problem – his plan is the problem,” Pai said. “This order imposes intrusive government regulations that won’t work, to solve a problem that does exist, using legal authority the FCC doesn’t have.”
O’Rielly was just as critical, calling the FCC ruling an attempt to “usurp the authority of Congress.” He said the commission’s approach isn’t a modernized version of Title II tailored to protect consumers, adding that the move was a “monumental and unlawful power grab.”
FCC Chairman Tom Wheeler denied that the FCC order was a “secret plan” designed to regulate the Internet and instead called the commission’s action “an irrefutable reflection” that no one should control free and open access to the Internet.
Wheeler said the new rules aren’t old-style utility regulation, but a new set of rules that rely on both Title II provisions and authority given to the commission in Section 706 of the Communications Act.
In addition, the FCC chairman argued that because the Internet has grown to replace the telephone and post office, and has redefined commerce and the entertainment industries, it is too important to exist without a “referee on the field” to make sure all the participants are playing fair.
“This is no more a plan to regulate the Internet than the First Amendment is a plan to regulate free speech,” Wheeler said. "They both stand for the same concept – openness, expression, and an absence of gatekeepers telling people where they can go and what they can think.”
While open Internet advocates applauded Wheeler’s statement, experts have previously told Government Technology they believe a Title II reclassification order from the FCC will end up in litigation.
The FCC's order on the Wilson and Chattanooga petitions pre-empts state laws in both North Carolina and Tennessee that restrict expansions of existing municipal broadband networks. It also gives the FCC the ability to review concerns in other states on a case-by-case basis.
The voting split on the issue was the same as net neutrality: Wheeler, Clyburn and Rosenworcel in favor of vacating state restrictions on network expansion in the states, with Pai and O’Rielly firmly dissenting.
Pai and O’Rielly were adamant that the FCC does not have the power to pre-empt state law. Pai referenced the dual sovereignty between state and federal government, noting that municipalities are arms of the state and not to be dictated to by Uncle Sam. Pai added that the FCC’s attempt to interfere with state governance “strikes near the heart of state sovereignty” and called the commission’s ruling “unlawful.”
Pai also pointed out that states will still be able to outright ban municipal networks under the order, just not have partial bans in place. He called it an “odd” arrangement. O’Rielly agreed and was equally as critical of the decision, calling the order something that “undermines common sense.”
“The only restriction that may survive the commission’s reading of section 706 is a state law imposing a flat ban, which seems shortsighted and counterproductive,” O’Rielly said. “That is, the order may encourage states that are concerned about the risks of municipal broadband to prohibit it all together, rather than permit it under carefully-tailored conditions that ensure such projects will be successful and not [place] burdens on taxpayers.”
Wheeler however, said the FCC is relying on the instructions of the U.S. Congress to remove barriers to infrastructure investment. He believes that the some states have created “thickets of red tape” to undermine the principles of competition, and the FCC’s action is cutting that tape to encourage broadband deployment.
“This decision is pro-broadband, this decision is pro-competition,” Wheeler said. “And this decision is for the right of Americans, through their elected local officials, to make their own decision about their broadband future.”