As the Federal Communications Commission begins an effort to rewrite its net neutrality rules, some public interest groups want the agency to take a greater step to reclassify the way it regulates broadband services.
The U.S. Court of Appeals for the District of Columbia last month struck down the agency’s 2010 rules that barred broadband providers from blocking lawful content or services and from unreasonably discriminating in the transmission of network traffic, such as slowing down access to some websites.
In response, FCC Chairman Tom Wheeler last week proposed drafting new regulations to fulfill those goals. The agency is looking to do so under the authority it has to promote deployment of broadband, which is classified as an “information service.”
Internet service providers have a lot of power as the gateway through which consumers access content online, said Chancellar Williams, associate policy director at Free Press. Consumers shouldn’t have their Netflix or other video service blocked or slowed down because those companies compete with a similar service provided by the customer’s Internet service company, he said.
Christopher Lewis, vice president of government affairs at Public Knowledge, said what’s made the Internet a “powerful tool” for commerce and innovation is the fact that people can access any website or service they want, allowing everyday people — from college students in dorm rooms to people who have lost their jobs — to become entrepreneurs at low startup costs.
That innovation may be slowed if new startups have to get permission from their Internet service providers to transmit a website or service to the consumer, said Lewis, who added, “We don’t need gatekeepers.”
Most net neutrality advocates, such as Public Knowledge, would prefer that Wheeler seek to reclassify broadband providers as “telecommunications services,” which would place them under the heavier regulation of Title II of the Telecommunications Act of 1996 (PL 104-104).
“Reclassification is the bulletproof option,” said Gabe Rottman, legislative counsel at the American Civil Liberties Union’s Washington Legislative Office, who said there would be clear authority under existing law for the FCC to implement net neutrality regulations if broadband were reclassified.
Reclassification is the “firmest ground for the FCC to stand on, legally speaking,” said Todd O’Boyle, program director at Common Cause. Lewis said that that’s the way Free Press wanted the FCC to draft the rules back in 2010.
More than 80 groups have written to the FCC calling for reclassification to ensure net neutrality, and several of those groups, including Free Press, have sent more than 1 million petitions to the FCC endorsing that approach.
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.
Some advocates fear the agency is just creating more problems for itself and net neutrality by trying to rework the rules under the authority of Section 706, with O’Boyle saying, “706 is gonna give us several more years of litigation and uncertainty.”
Williams said Wheeler’s strategy is on a “shaky legal foundation” and that it will be a challenge for the agency to advance net neutrality rules using that section of law. “The courts have said the FCC cannot do anything common carrier-like using that authority,” he said.
But some other groups who support reclassification are more open to the idea of moving forward under Section 706. That provision provides some opportunities and is “worth exploring” as long as it doesn’t go too far, said Clarissa Ramon, government affairs and outreach associate at Public Knowledge.
“That’s the big, great, unanswered question — how far does this authority go?” asked Christopher S. Yoo, a professor at the University of Pennsylvania Law School.
FCC Commissioner Mike O’Rielly thinks the agency could go too far in using Section 706. “As I have said before, my view is that section 706 does not provide any affirmative regulatory authority,” O’Rielly said in a statement last week. “We should all fear that this provision ultimately may be used not just to regulate broadband providers, but eventually edge providers.”
Partisan Divide on Capitol Hill
In Congress, Democrats generally praised the FCC’s announcement last week, while Republicans slammed it as unwarranted and an effort at government control of the Internet.
Mississippi Sen. Roger Wicker, the ranking Republican on the Senate Commerce, Science and Transportation Subcommittee on Communications, Technology and the Internet, criticized even leaving Title II on the table as an option.
“Reserving the option of applying outdated Title II regulations to modern technologies through ‘reclassification’ will only add uncertainty to the marketplace and stifle innovation,” Wicker said in statement.
The ranking Republican on the full Commerce Committee also criticized the move. “The Chairman must have little faith that the FCC’s latest attempt to regulate the Internet will hold up under legal review, otherwise why bother keeping the Title II reclassification docket open?” Sen. John Thune of South Dakota said in a statement.
But Minnesota Democratic Sen. Al Franken questions whether the FCC can achieve its net neutrality goals without resorting to reclassification.
“It’s critically important that the approach the FCC takes achieves that goal [of net neutrality], and there are some real questions about whether the path they’ve chosen will actually accomplish that,” Franken said in a statement last week. “With that in mind, over the next several months I will be working to make sure that the FCC’s action to protect net neutrality is enduring and effective.”
House Energy and Commerce Committee member Marsha Blackburn, R-Tenn., has introduced a bill to overturn the 2010 rules and prohibit any future ones, like the effort that Wheeler and FCC staff are working on now.
Earlier this month, before Wheeler’s announcement, the Energy and Commerce panel’s ranking Democrat, Henry A. Waxman of California, introduced a bill that would temporarily reinstate the FCC’s original 2010 rules until the agency responds with final action.
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.