By Bryce Baschuk
Feb. 19 --The Federal Communications Commission will seek to re-implement net neutrality rules to ensure that Internet service providers like Comcast Corp., AT&T Inc. and Verizon Communications Inc. don't unfairly block or discriminate against Internet content providers like Netflix Inc., Google Inc. and Amazon.com Inc.
The announcement comes more than a month after the U.S. Court of Appeals for the District of Columbia Circuit ruled that the FCC's open Internet rules may not bar broadband ISPs from blocking or discriminating against Internet content transmitted across their networks (Verizon Commc'ns Inc. v. FCC, D.C. Cir., No. 11-1355, 1/14/14). The FCC won't seek further judicial review of the D.C. Circuit Court's decision, an FCC official told reporters in a Feb. 19 media briefing.
The FCC will instead use its authority under section 706 of the Telecommunications Act of 1996 (Pub. L. No. 104-104) and the guidance of the court to enforce and enhance the non-discrimination and no-blocking rules with an adequate legal rationale to stand up to further court scrutiny, the FCC official said. The court affirmed that Congress provided the FCC with legal authority to create rules governing broadband Internet access via section 706, which requires the FCC to encourage “the deployment on a reasonable and timely basis of advanced telecommunications capability to all Americans.”
The proposal won't seek to reclassify broadband Internet service under Title II of the Communications Act, which gives the FCC the express and expansive authority to regulate “common carrier” services. The commission will, however, keep its Title II authority on the table, the FCC official told reporters. Broadband Internet service is currently categorized under Title I of the Communications Act as an “information service” subject to less stringent regulations.
“As the Court of Appeals noted, as long as Title II--with the ability to reclassify Internet access service as a telecommunications service--remains a part of the Communications Act, the commission has the ability to utilize it if warranted,” FCC Chairman Tom Wheeler said in a news release.
The FCC opened a new docket Feb. 19, seeking comment on the court's decision and what actions the commission should take next. Beginning in the late spring or early summer, the commission will produce a notice of proposed rulemaking that seeks to re-implement enhanced rules, consider public comments and then vote on a final order.
“The court recognized the importance of ensuring that so-called 'edge providers,' those that use the network to deliver goods and services, can reach people who use the Internet,” Wheeler said. “And it upheld the commission's judgment that Internet freedom encourages broadband investment and that its absence could ultimately inhibit broadband deployment,” he said.
Wheeler said the FCC's new non-discrimination rules will consider:
• setting an enforceable legal standard that provides guidance and predictability to edge providers, consumers, and broadband providers;
• evaluating on a case-by-case basis whether that standard is met; and
• identifying key behaviors by broadband providers that the FCC would view with “particular skepticism.”
The FCC will craft its non-discrimination rules in accordance with a precedent set by the D.C. Circuit Court's decision in a previous case regarding the FCC wireless data roaming requirements (Cellco Partnership v. FCC, D.C. Cir., No. 11-1135, 12/4/12). In its Cellco decision, the court upheld an FCC rule requiring wireless carriers to allow customers of their competitors to roam on their networks because it specified that all facilities-based mobile broadband providers must offer their competitors' data-roaming arrangements on “commercially reasonable terms and conditions,” subject to certain limitations. The court struck down the FCC's net neutrality rules because they too closely resembled Title II common carrier regulations.
The FCC will also seek to enhance the transparency rule in the 2010 Open Internet Order that requires fixed and mobile broadband providers to “disclose the network management practices, performance characteristics, and terms and conditions of their broadband services.” The D.C. Circuit Court upheld the FCC's transparency rule in its January decision.
The commission said it will seek to reduce barriers to broadband infrastructure investment such as legal restrictions on the ability of cities and towns to offer broadband services to consumers in their communities. Nearly 20 states have established rules that discourage or prevent governments from building broadband networks that may compete with incumbent commercial ISPs, according to data compiled by the Institute for Local Self-Reliance.
ISPs should continue to uphold their commitments to honor the principles of the Open Internet Order until new rules are enacted, Wheeler said. Following the January court decision major ISPs like Verizon, Comcast and AT&T said they would continue to protect and maintain an open Internet. Comcast remains bound to its agreement to adhere to open Internet conditions as a part of its 2011 merger with NBC Universal Inc.
The FCC's two Republican commissioners said they disagreed with Wheeler's proposal to issue new Internet regulations. Commissioner Ajit Pai said in a news release that he was skeptical about whether the commission's proposal will “end any differently from the last.” Commissioner Michael O'Rielly said the FCC is “tilting at windmills” by “devoting its resources to adopting new rules without any evidence that consumers are unable to access the content of their choice.”
House Energy and Commerce Committee Chairman Fred Upton (R-Mich.) and House Communications and Technology Subcommittee Chairman Greg Walden (R-Ore.) admonished the administration for refusing to “abandon its furious pursuit of these harmful policies to put government in charge of the web,” in a joint statement. “These regulations are a solution in search of a problem, and with the many issues on its plate, including implementation of the spectrum incentive auctions, it would be wise for the commission to focus on fostering economic growth, job creation, and competition,” they said.
Sen. John Thune (R-S.D.) the ranking member on the Senate Committee on Commerce, Science and Transportation said the FCC's announcement is “a bit of deja vu and is an unnecessary overreaction to the D.C. Circuit striking down most of the Open Internet Order,” according to a news release. “I expect to speak with the chairman later this week, and I will again remind him of the importance of working with Congress to ensure his plans don't require corrective legislation.” Thune previously asked Wheeler during the chairman's June confirmation hearing to seek congressional direction before pursuing any new net neutrality rules.
Rep. Henry Waxman (D-Calif.), the ranking member of the House Energy and Commerce Committee commended Wheeler in a news release for seeking to readopt net neutrality rules and “grounding them on a strong legal footing.” Rep. Anna Eshoo (D-Calif.), the ranking member of the House Communications and Technology Subcommittee said in a separate release that Wheeler's effort will “put consumers back in the driver's seat when it comes to their online experience.” Waxman and Eshoo cosponsored the Open Internet Preservation Act, H.R. 3982, which seeks to reestablish the principles of the 2010 Open Internet Order in law.
Protecting net neutrality was one of President Barack Obama's campaign pledges and the White House recently said that the lack of net neutrality rules could create barriers to broadband Internet investment.
“Absent net neutrality, the Internet could turn into a high-priced private toll road that would be inaccessible to the next generation of visionaries,” said National Economic Council Director Gene Sperling and White House Chief Technology Officer Todd Park in a recent blog post.
To contact the reporter on this story: Bryce Baschuk in Washington at email@example.com
To contact the editor responsible for this story: Heather Rothman at firstname.lastname@example.org
For more information read FCC Chairman Tom Wheeler's statement here: http://www.fcc.gov/document/statement-fcc-chairman-tom-wheeler-fccs-open-internet-rules.
To view additional stories from Telecommunications Law Resource Center™ register for a free trial now