It is the only “feasible” way to sustain net neutrality rules, added Jessica Gonzalez, executive vice president and general counsel at the National Hispanic Media Coalition. And doing so would open the door for the FCC to expand to broadband a program that provides telephone service discounts for low-income people, she said.
“Reclassification opens doors beyond net neutrality,” she said.
O’Boyle also said it would be an opportunity to extend to wireless providers certain net neutrality provisions that had only applied to fixed broadband providers in the FCC’s 2010 order.
But the debate over reclassification will be deeply contentious. Opponents argue that doing so would hamper innovation, deter investment by placing the government into broadband network operations, undermine competition and apply an inappropriate regulatory framework to broadband.
“Classifying the most technologically advanced communications network in human history as a common carrier is a terrible mistake,” said the National Cable and Telecommunications Association in a blog post last month. “Time and time again both Democrats and Republicans have said this type of regulation delays innovation, creates uncertainty, and inhibits a lively marketplace.”
Randolph May, president of The Free State Foundation, said the common carrier regulation “was devised to regulate service providers in an environment in which they exercised monopolistic power.”
Title II is a “utility model” where an agency has discretion to control rates, a system that doesn’t drive investment, said Berin Szoka, president of TechFreedom. And, from a legal standpoint, the court decision gives the FCC more latitude to address net neutrality without resorting to reclassification than what those advocates contend, he said.
“I think they have a lot of power today under the D.C. Circuit’s decision,” he said. “The FCC has broad authority under 706 to require that deals be reasonable and non-discriminatory.”
And even if the FCC, in reclassifying, can pick and choose which parts of Title II would apply — which some advocates say the FCC could do — the agency would have to justify each requirement and each decision would be subject to legal challenge, he said. It also would divert the attention of the agency and Congress from other issues, and it would become a big political fight.
“I don’t think that reclassification is either desirable, easy or inevitable,” he said.
The FCC has already considered trying reclassification but, in the process of issuing its 2010 net neutrality order, dropped the idea after criticism from both Republican and Democratic lawmakers and intense pressure from a handful of large telecommunications and cable companies.
The appellate court’s decision said the agency had authority under Section 706 of the 1996 telecommunications law to regulate how broadband providers treat Internet traffic. At the same time, it struck down the agency’s 2010 rules that barred broadband providers from blocking content or unreasonably discriminating the flow of traffic on their networks.
Given the way the FCC had classified broadband services, the FCC couldn’t regulate broadband as a common carrier, but the agency hadn’t shown that those rules weren’t basically common carrier regulations, the court ruled.
In response, Wheeler announced last week that he would pursue a rewrite of the anti-blocking and no-discrimination rules, and agency staff said that would be done under the legal framework of Section 706, although he will keep the reclassification option on the table.
Vice President Joe Biden waits to conduct a mock swearing-in ceremony with Sen. Brian Schatz, D-Hawaii, in the Capitol's Old Senate Chamber, December 2, 2014. Schatz was sworn in to serve the remainder of his term since he was appointed to the seat after Sen. Daniel Inouye, D-Hawaii, passed away.