Following an Appeals Court decision that knocked down two of the three legs that propped up the Federal Communications Commission’s network neutrality rules, the FCC has requested suggestions from the public about how to proceed – how “to consider the court’s decision and what actions the Commission should take.”
In a letter, FCC Chairman Tom Wheeler said he intends to propose new rules that restore the ones knocked down by the Appeals Court. The FCC wants new rules in place by the late spring or early summer.
The FCC established its network neutrality rules in 2010. They prohibited any ISP from blocking traffic, or from discriminating against any traffic. The rules also demanded transparency – that ISPs make public their traffic handling policies.
The U.S. Court of Appeals for the District of Columbia ruled that the FCC did not have the authority to enforce those first two provisions under its stated rationale. The Court ruled that the FCC might have authority to impose anti-blocking and anti-discrimination rules, but it would require a different rationale. (The FCC said it will continue to enforce transparency rules).
One such rationale would be to change how broadband is classified. Communications services are subject to FCC oversight; information services are not. Broadband is classified as an information service. Reclassifying it as a communications service would automatically give the FCC authority to impose rules and regulations.
There is some public sentiment in favor of doing so. A petition to the White House urges the President to direct the FCC to reclassify broadband. That petition has received enough signatures to trigger a response from the Obama Administration, which said it does not have the authority to direct the FCC to comply with the petition request.
Elements of the communications industry, including most cable companies, are on record saying that they intend to voluntarily comply with the anti-blocking and anti-discrimination rules that were struck down.
Few companies have commented on the reclassification issue, but the industry can be expected to be actively hostile to such a maneuver.
Wheeler has not signaled which way he might go, but he made it clear that he is not persuaded by the arguments that regulations are prima facie bad. In his letter, he wrote:
“When the earlier rules were adopted in 2010, some predicted that they would stifle investment and innovation. They were wrong. In fact, investment increased for both edge providers and in broadband networks. In particular, since 2009, nearly $250 billion in private capital has been invested in U.S. wired and wireless broadband networks. The FCC must stand strongly behind its responsibility to oversee the public interest standard and ensure that the Internet remains open and fair. 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.”