Net Neutrality Gains Second Wind under Wheeler

• By Dian Schaffhauser
• 02/20/14

Tom Wheeler isn't taking his latest net neutrality court loss in stride; he's fighting back. Yesterday, the chairman of the Federal Communications Commission (FCC) proposed new rules for preventing what he called "improper blocking of and discrimination among Internet traffic."

In January, the FCC took a legal beating in a federal court when Verizon, one of the largest Internet broadband providers in the country, worked to overturn rules regarding what classifies as an "open Internet." As previously reported, the FCC had established three basic rules for defining what open means. First, broadband service providers need to be transparent about how they manage their traffic. Second, providers aren't allowed to block traffic. And, third, they can't throttle back on services that compete with their own. But a Washington, D.C. federal court threw out the second and third rules.

What was kept intact was the FCC's authority to govern broadband providers' treatment of Internet traffic. In fact, reminded the FCC in an FAQ, "the court upheld the conclusion that without rules of the road, broadband providers could harm consumers and the economy."

It's that basis around which Wheeler appears to be building a case for revamping how the FCC handles net neutrality. Wheeler is proposing a set of steps "to ensure that the Internet remains a platform for innovation, economic growth and free expression." His stated goal: to ensure that broadband providers don't block or create barriers to lawful content, Web sites or services.

First, he is pushing for approval of new rules to put Internet broadband providers on notice that they need to be on their best behavior:

• To enforce and enhance the transparency rule. This one requires network operators to report on how they manage their Internet traffic. Doing so, Wheeler added, would allow "edge providers," organizations that use the Internet for delivery of goods and services, to have the "technical information" they need to make business decisions.
• To fulfill the "no blocking" goal. The court decision found that although the "Open Internet Order" ban on blocking Internet traffic was important, the FCC hadn't provided a "sufficient legal rationale" to support the ban. Wheeler suggested that his organization do more to make sure edge providers don't get blocked and that consumers continue having access to the legal content they want.
• To ensure discrimination doesn't happen. Wheeler proposed setting a legal standard with guidance and predictability for use by edge providers, consumers, and broadband providers; to monitor "on a case-by-case basis" whether the standard is being met; and to identify activities by broadband providers "that the Commission would view with particular skepticism."

Second, Wheeler reminded the FCC that it retains the ability under the Communications Act to reclassify Internet access service as a telecommunications service instead of its current status as an "information service." The importance of that point, as Time magazine recently explained, is that broadband providers currently aren't viewed as "common carriers," thereby exempting them from the same kinds of regulations that prevent telecom companies from showing traffic discrimination.

Wheeler is taking his mission to maintain network neutrality to the American public. The commissioner opened a new docket, "Protecting and Promoting the Open Internet," to solicit input over the next month regarding what actions the commission should take in light of the court's decision.

He is also recommending that the FCC look for ways to encourage greater choice for delivery of broadband. For example, he noted, one "obvious" way to boost competition is to eliminate legal restrictions that might exist on the ability of cities and towns to offer broadband services to consumers in their communities.

Wheeler also suggested that the FCC drop any additional legal action in regards to appealing the Verizon decision, possibly a sign that he believes he can work within the judge's ruling to obtain his ultimate goals.

The commission is divided regarding Wheeler's latest actions. Two commissioners, Mignon Clyburn and Jessica Rosenworcel, have publicly supported his efforts. "The Commission must act expeditiously to adopt clear, enforceable rules that protect the openness of the Internet while continuing to promote innovation and investment," stated Clyburn in a statement. "I am also pleased that the chairman announced that the commission will look for opportunities to enhance broadband competition including examining restrictions on the ability of municipalities to offer broadband — restrictions that I have long advocated be eliminated."

Two other commissioners, Ajit Pai and Michael O'Rielly, have suggested that additional rules are unnecessary. "We should all fear that this provision ultimately may be used not just to regulate broadband providers, but eventually edge providers," wrote O'Rielly in a public statement. "It appears that the FCC is tilting at windmills here. Instead of fostering investment and innovation through deregulation, the FCC will be devoting its resources to adopting new rules without any evidence that consumers are unable to access the content of their choice."

Wheeler appears not to be deterred. In the statement laying out his current position and the new recommendations, he concluded, "The Internet is and must remain the greatest engine of free expression, innovation, economic growth and opportunity the world has ever known. We must preserve and promote the Internet."