The FCC today adopted a notice of proposed rulemaking aimed at determining how the commission will move forward on establishing rules designed to ensure an open Internet. The NPRM has been subject to considerable controversy – and that controversy is unlikely to subside as a result of today’s action.
As expected the proposed rules would require broadband providers to adhere to commercially reasonable practices with regard to managing Internet traffic but would not specifically prohibit broadband providers from offering paid prioritization. The NPRM however does however seek comment on whether paid prioritization should be barred.
If paid prioritization were allowed, broadband providers would be able to charge content providers extra for giving their traffic a higher priority than other traffic. Opponents argue that this move would cause service on non-prioritized traffic to deteriorate.
Other key elements of the proposal include:
- Asking whether mobile services should be treated differently than fixed services
- Asking whether the commission should enhance transparency rules
- Broadband providers would be prevented from blocking “edge provider” access to broadband customers. The term “edge provider” appears to refer to content providers
- A multi-faceted process for resolving complaints about openness of the Internet that would include establishing an ombudsperson focused on this area
- Relying on Section 706 of the 1996 Telecom Act for authority to impose Open Internet guidelines but asking if the commission should instead draw its authority from Title II of an earlier telecom act, perhaps forbearing from imposing certain regulations traditionally associated with Title II
Wheeler Defends Proposal
The proposed rules were spearheaded by FCC Chairman Tom Wheeler but according to some of the other commissioners, Wheeler recently modified the proposal in an attempt to address the concerns of public interest groups and high-tech firms who said the initial proposal was not strong enough in protecting the Open Internet.
At today’s FCC meeting where the NPRM was adopted, Wheeler defended his proposal and attempted to defuse critics. “I strongly support an Open Internet,” said Wheeler.
Acknowledging the strong outcry that reports about the proposal generated, Wheeler said, “By releasing this item today those who have been expressing themselves will be able to see what we are actually proposing.”
He added that “if someone acts to divide the Internet between ‘haves’ and ‘have-nots’ we will use every power to stop it. The prospect of gatekeepers choosing winners and losers on the Internet is unacceptable.”
Other commissioners were critical of various aspects of Wheeler’s plan, however. Commissioner Jessica Rosenworcel argued that Wheeler moved too fast with his proposal, while Commissioner Michael O’Rielly said the proposed rules would stifle innovation and Commissioner Ajit Pai said Open Internet rules should be adopted by Congress rather than the commission.
The Authority Issue
How the FCC aims to establish its authority to impose Open Internet rules is important because the rules previously adopted by the FCC were struck down earlier this year by an appeals court on the grounds that the commission had not established its authority to impose those rules. Whether any rules will stick depends on whether the FCC can demonstrate that it has the proper authority.
The commission essentially has two options there.
One is to draw its authority from Section 706, which says the FCC “shall encourage the deployment on a reasonable and timely basis of advanced telecommunications capability to all Americans.” But some stakeholders are concerned that the argument that Section 706 gives the FCC the authority to impose Open Internet rules will not hold up in court if challenged.
The other option is to draw authority from Title II, which gives the FCC the authority to impose rules on telecommunications service providers. It would require the FCC to classify broadband as a telecommunications service, reversing a previous FCC decision that said broadband was not a telecommunications service but instead was an information service. Some people argue that reclassification would be the surest way for the FCC to establish its authority but others argue that it would subject the Internet to burdensome regulation such as price control.
Interested parties have until July 15 to file comments about the proposal adopted today.
Also today the FCC adopted rules for the upcoming incentive auction of TV broadcast spectrum in the 600 MHz band.