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Jan. 17 --It remains unclear exactly how the Federal Communications Commission and Congress will change their thinking about the operation of the Internet in the wake of the U.S. Court of Appeals for the District of Columbia Circuit's decision gutting the agency's net neutrality rules, attorneys and Internet analysts said during a panel discussion hosted by the Congressional Internet Caucus Advisory Committee.
On Jan. 14 the D.C. Circuit Court vacated the agency's anti-blocking and anti-discrimination rules as tantamount to common carrier regulations of broadband Internet services, something barred under the commission's current classification of the Internet as an information service. The court did uphold the FCC's authority under Section 706 of the 1996 Telecommunications Act to regulate “broadband providers' treatment of Internet traffic.”
FCC Chairman Tom Wheeler has vowed to fight the court's decision and revisit the concepts behind the rules. Wheeler said this week that all options are on the table, including an appeal to the full D.C. Circuit Court, an appeal to the Supreme Court, or an attempt by the commission to reclassify broadband Internet access services as a common carrier “telecommunications” service under Title II of the Communications Act.
Free Press Policy Director Matt Wood said the public advocacy group has urged Title II reclassification, which gives the FCC the express and expansive authority to regulate common carrier services. Broadband Internet access service is currently categorized under Title I of the Communications Act as among “information services,” which are subject to less stringent regulations. Wood acknowledged that, particularly in Congress, there “is definitely a lot of political wrangling around that.”
Wheeler could reclassify broadband Internet services under Title II, “but the question is whether the chairman wants to expend political energy doing this,” said Christopher Yoo, a professor at the University of Pennsylvania Law School.
Net neutrality isn't the only issue facing Wheeler during his remaining days as commissioner, Yoo said, and Wheeler “faces a choice of whether he wants to be the net neutrality chairman or the Internet protocol transition chairman,” Yoo said.
Between now and the last day of Barack Obama's presidency Wheeler will seek to:
• conduct at least three spectrum auctions to generate billions for the development of a nationwide interoperable communications network for first responders,
• consider the best ways for companies to retire traditional landline telephone services in favor of Internet protocol-based communications services,
• endeavor to modernize the commission's universal service regulations, including an expansion of the 1996-era E-Rate program to bring greater broadband Internet speeds to schools and libraries,
• revamp the commission's administrative processes, and
• take a fresh look at the agency's media ownership rules, among other pressing issues.
“It's possible the chairman will fold this into a broader discussion about how we think of the Internet,” Yoo said.
Markham Erickson, a partner at Steptoe & Johnson, said he thought it far more likely that Wheeler would seek to adopt new, high-level rules that adjudicate violations of the principles of net neutrality on a case-by-case basis. By employing its Section 706 authority “the FCC could move relatively quickly on that,” Erickson said.
Wheeler wrote the following in a recent FCC blog post: “My intention is to employ any necessary means among the wide variety of them given to the FCC by the Congress to sustain our jurisdiction. How jurisdiction is exercised is an important matter. My strong preference is to do it in a common law fashion, taking account of and learning from the particular facts that have given rise to concern.”
Banking on Congress to enact legislation this session that will bring greater clarity to the commission's governance of the Web is unlikely, said Yoo. “The traditional narrative you hear outside of the Beltway is that this is a split Congress, it's an election year and everything shifts to campaigns.”
Yoo said he's encouraged that House Energy and Commerce Committee Chairman Fred Upton (R-Mich.) and Rep. Greg Walden (R-Ore.) have launched an effort to revise and update the Communications Act of 1934. “The reason for hope is that Congress can take a few positive steps on the line of providing meaningful reform,” Yoo said. “That needs to happen because the Internet did not exist in 1934.”
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