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FCC Chief Says Agency Will Revisit Open Internet Order

Thursday, January 23, 2014

By Bryce Baschuk  

Jan. 16 --The chairman of the Federal Communications Commission said he plans to revisit the principles behind the agency's Open Internet Order, which was largely thrown out by a federal appeals court.

The court “invited the commission to act and I intend to accept that invitation,” Tom Wheeler said in a Jan. 16 speech delivered at a Minority Media and Telecom Council event. “Using our authority we will readdress the concepts in the Open Internet Order, as the court invited, to encourage growth and innovation and enforce against abuse.”

Wheeler declined to offer specifics after the speech, including how the commission planned to revise its rules to govern the Internet.

It was his first speech since the U.S. Court of Appeals for the District of Columbia Circuit ruled Jan. 14 that the FCC's Open Internet Order should not prohibit broadband Internet service providers from charging content providers for improved Internet connections to their customers. The ruling provides ISPs--like Comcast Corp., AT&T Inc. and Verizon Communications Inc.--the legal certainty to enter into paid-prioritization agreements with content providers like Netflix Inc., Google Inc. and Amazon.com Inc. (Verizon v. Federal Communications Commission, D.C. Cir., No. 11-1355, 1/14/14).

Wheeler said he would hold ISPs at their word to voluntarily keep their commitments to uphold the principles of net neutrality despite the fact that the court remanded the commission's anti-blocking and anti-discrimination rules. “That is the right and reasonable thing to do and we will take them up on their commitment,” he said.

“The reason broadcast ownership was so important in the past was because it gave access to a highly controlled media,” Wheeler said. “We will not let that kind of control take over the Internet, period.”

Partisan Divisions Remain

Wheeler has so far given little indication as to how exactly the commission will respond to the court decision, other than to say that all options are on the table. The court left the FCC with room to rewrite its net neutrality rules when it held that Section 706 of the 1996 Telecommunications Act authorizes the FCC to regulate “broadband providers' treatment of Internet traffic.” Alternatively, the commission could appeal the case to the Supreme Court, an option that Wheeler has not dismissed.

Commissioner Mignon Clyburn, a Democrat, said she's focused on the positive aspects of the case.

“The court recognized our authority under section 706(a) and 706(b) and upheld our transparency requirement,” she said. “I will of course support the chairman as he lays out the next steps on what I believe is a high-level set of six principles that set clear signals both to consumers and companies.”

Commissioner Ajit Pai, a Republican, said the FCC should take no for an answer.

“As a legal matter the answer is pretty clear,” he said. “This is the second time in four years that the D.C. Circuit, the second highest court in the land, has held the FCC exceeded its authority in trying to regulate the Internet.”

Added Pai: “We should focus on what are the ways the FCC can incentivize the deployment of broadband infrastructure, as opposed to focusing on a problem that may occur in the future.”

Republican Commissioner Michael O'Rielly said he doesn't expect the decision to have a big impact on consumers.

“The companies that potentially would be governed by net neutrality rules have all indicated to me and to others that they intend go forward with business as usual, trying to meet the needs of all consumers,” he said. “So I don't imagine it will have a dramatic impact on the marketplace today given the decision.”

O'Rielly, who was a congressional aide since 1995 before joining the FCC, said he disagreed with the court's decision to uphold the agency's authority to regulate the Web under Section 706 of the Telecommunications Act.

“I was actually in the room when Section 706 was written,” he said. “I was there, I know what it meant and I know how far it was supposed to be intended. So I have difficulty in agreeing with the court in this instance.”

To contact the reporter on this story: Bryce Baschuk in Washington at bbaschuk@bna.com

To contact the editor responsible for this story: Heather Rothman at hrothman@bna.com

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