Is the FCC Dragging Its Feet on Net Neutrality?

Although the public comment period on how federal rule makers should view Internet traffic is closed, experts believe the FCC isn't close to making a decision.

by / September 25, 2014
Citizens protest for net neutrality at Google HQ in 2010. Flickr/Steve Rhodes

More than 3.7 million comments were submitted to the Federal Communications Commission about how it should regulate Internet traffic. But the commission doesn't appear to be any closer to making a decision on net neutrality.

The FCC will likely wait to make a final ruling until after its last Open Internet Roundtable on Oct. 7, which will focus on theories of legal authority and basis for creating Open Internet rules, according to a Sept. 22 blog by Julie Veach, chief of the FCC's Wireline Competition Bureau. But this delay isn't a surprise, according to experts.

Sarah Morris, senior policy council for New America's Open Technology Institute, explained that from what she has observed, the FCC is moving “full speed ahead,” noting that the commission has millions of submissions to sift through.

“I don't think the FCC is stalling – this is just the largest docket in the history of the commission, and it will take some time to get all the pieces right in a final Order,” Morris said.

Not everyone feels the sheer number of comments filed on net neutrality is what has the FCC taking its time, however. Michael Botein, professor of law for New York Law School, pointed out that only a small fraction of the commentary sent to the commission was on point.

“Since only 1 percent of the FCC comments actually addressed the neutrality issue – versus other issues from porn to rates – how concerned, really, are people with the principle of promoting content through preventing or limiting bidding?” Botein questioned.

The FCC's draft rules on net neutrality propose banning Internet service providers (ISPs) from blocking users' access to certain websites and apps, but allowing for some deals between ISPs and vendors that would prioritize delivery of some Web content. The proposal would let network owners charge for an Internet "fast lane," shifting other traffic to slower routes.

At issue is what legal vehicle the commission will choose to base its proposal on. If it chooses to rely on Title II of the Communications Act of 1934 for the statutory classification of broadband, the FCC could then classify ISPs as common carriers. The popular belief is that if ISPs fall under Title II, it would enable the FCC to protect net neutrality by regulating against paid prioritization.

This strict approach is favored by most open Internet advocates. The telecommunications agency is primarily against regulation based on Title II, believing it would impose 19th-century thinking on modern communications technology.

Section 706 of the Telecommunications Act of 1996 is also on the table for consideration. Commission Chairman Tom Wheeler is said to favor relying on the broad authority that some feel exists in Section 706 for the FCC to regulate in the public interest. But as Veach noted in her blog, it has been suggested that paid prioritization may also be banned under the section. The authority under 706 isn't as express as it is in Title II.

Nuala O'Connor, president of the Center for Democracy and Technology, noted in a letter to the commission that a hybrid approach, combining elements of both Section 706 and Title II, might be the best option if a re-classification of broadband access service isn't appealing to FCC commissioners. The FCC could build an entirely new policy adapting the appropriate language from both to fit the modern Internet paradigm.

Chris Lewis, vice president of government affairs for Public Knowledge, a nonprofit group that advocates for open Internet, felt whatever the FCC adopts, the rules need to be drafted to survive a court challenge.

“No one wants to see these protections struck down again over legal technicalities,” he said.

FCC Commissioners Mignon Clyburn and Jessica Rosenworcel were in Sacramento, Calif., on Wednesday, Sept. 24, for a net neutrality forum hosted by Rep. Doris Matsui, D-Calif. In their opening remarks, the commissioners made it clear that their focus was to maintain a free and open Internet.

Clyburn said the millions of comments on net neutrality was proof of the impact the Internet has had on society and shows the power it has to stir public engagement. She vowed to stay focused on the consumer impacts the commission's rulemaking on net neutrality might have, and said she feels that has gotten lost in the debate between Title II and Section 706.

Rosenworcel was candid that she supports network neutrality, said a two-tiered Internet was unacceptable and called paid prioritization of Internet content “a tax on innovation.” Although she commended Wheeler for saying publicly this week that he still believes Title II and reclassification of ISPs as common carriers is still on the table, Rosenworcel said she feels the FCC needs to be more open to ideas from outside Washington, D.C.

“We have a duty to protect what has made the Internet the most dynamic platform for free speech ever invented,” she said.

Brian Heaton

Brian Heaton was a writer for Government Technology magazine from 2011 to mid-2015.