The Federal Communications Commission voted on May 15 to proceed with a Notice of Proposed Rulemaking on network neutrality. The new proposed rules consider multiple pathways to broadband regulation and increase the Commission’s oversight of open Internet principles.
The FCC now seeks comment on two specific ways to protect the open Internet, which are outlined in the proposal. The first relies on the belief of some that the FCC has power to broadly regulate issues in the public interest -- such as Internet access -- under Section 706 of the Telecommunications Act of 1996.
The second consists of reclassifying broadband services under Title II of the Communications Act, which would then subject companies like Comcast, Verizon and AT&T to “common carrier” regulation, meaning Internet access is provided to consumers under license or authority of a regulatory body – such as traditional landline phone service.
In addition, the proposed rules contain provisions that require broadband providers to disclose any practices that could change a consumer’s relationship with the network. It also creates an ombudsman position in the FCC where consumers can file complaints about questionable Internet provider actions. The ombudsman would have authority to investigate the claims and address the issue on behalf of consumers.
Comments on the proposal are due by July 15.
During the FCC’s Open Commission meeting, Chairman Tom Wheeler and Commissioner Mignon Clyburn stressed that the rules are just a proposal and not final. They encouraged parties to use the commentary period to help them shape the Internet’s future.
The proposed rules are a response to the U.S. Court of Appeals for the District of Columbia Circuit ruling that struck down federal rules that had previously barred broadband providers from favoring some sites and slowing down or blocking others. The Jan. 14 decision enabled providers to potentially censor content or favor companies that may pay providers more to feature their content.
In the ruling, however, the court affirmed that the FCC has the legal authority to issue enforceable rules to preserve Internet freedom and openness. So instead of appealing the court’s ruling, the Commission is taking up the challenge of drafting net neutrality rules that will survive judicial scrutiny.
Not all the commissioners were on the same page, however. Commissioner Jessica Rosenworcel said she supports an open Internet, but felt the FCC shouldn’t have rushed to put on a proposed rule. She noted that since the Jan. 14 court ruling, there has been a flood of public commentary on the issue. She suggested that the Commission’s current rulemaking process is flawed and urged them for a delay.
Commissioner Ajit Pai agreed with Rosenworcel that the proceedings were happening too quickly. He advocated for a more hands-off approach, suggesting that if the FCC is determined to move forward, it should delay the rulemaking process to conduct a series of economic studies to determine the impact of the proposed rules. He added that the dispute should be up to Congress and elected officials to decide, and respectfully dissented.
Some federal lawmakers concurred with Pai. U.S. House of Representatives Energy and Commerce Committee Chairman Fred Upton, R-Mich., and Communications and Technology Subcommittee Chairman Greg Walden, R-Ore., expressed their disappointment in Wheeler’s proposed rules.
“Free from regulation and government meddling, the Internet as we know it has thrived. Sadly, these unnecessary rules the commission proposed today will have a chilling effect on job creation and innovation without any corresponding consumer benefit," said Upton and Walden in a joint statement. "These rules are a solution in search of a problem. Worse still, any attempt to reclassify broadband Internet embarks on a worrisome course for its future."
Commissioner Michael O’Reilly stated that he does not support the FCC’s current proposal and voted against it. He noted that Congress never gave the Commission power to regulate under Section 706 and said the proposed rules seek to broaden the FCC’s authority.
Wheeler was adamant, however, that he strongly supports an open Internet and commented that the proposal is “another step in a decade-long effort to preserve and protect” net neutrality. He said that nothing in the proposed rules authorizes any “paid prioritization” that would allow providers to favor one company’s media content over another.
In addition, Wheeler said he believes a level playing field must exist on the Internet for startup companies so they can reach consumers and be protected against any potential harmful conduct of broadband providers. As a former entrepreneur and venture capitalist, Wheeler stressed that he knows the value of openness and would not allow the Internet to be compromised.
“I’ve got scars from when my companies were denied access in the pre-Internet days,” Wheeler said. “The consideration we begin today is not about whether or not the Internet must be open. It’s about how and when we will have rules in place to ensure an open Internet.”