As anticipated, FCC Chairman Tom Wheeler began circulating a draft Report and Order among the FCC’s commissioners on Thursday that mandates Title II regulation of both fixed and wireless broadband Internet service providers (ISPs), in an effort to promote net neutrality and the openness of Internet networks. Outlining the basic details of the draft order in a Wired Magazine op-ed article, Wheeler claimed that the draft order provides “the strongest open Internet protections ever proposed by the FCC.”
In the words of Wheeler, “these enforceable, bright-line rules will ban paid prioritization and the blocking and throttling of lawful content and services” on the Internet and will assure “the rights of Internet users to go where they want [and] when they want.” The regulatory regime prescribed by the draft order resembles the light touch approach taken by the FCC when the agency decided to regulate mobile voice service under Title II in the 1990s. Under Wheeler’s approach, the FCC would use its forbearance power to exempt ISPs from many of the regulatory obligations that apply to common carriers under Title II. Wheeler noted there would be no rate regulation, “no tariffs [and] no last-mile unbundling.” The rationale behind that approach, explained Wheeler, is to “preserve incentives for broadband operators to invest in their networks” and “provide returns necessary to construct competitive networks.” Notwithstanding the light touch approach, ISPs would be subject to other Title II provisions that include (1) the requirement for practices to be “just and reasonable,” (2) services being subject to FCC complaint, investigation, and enforcement procedures, and (3) application of consumer privacy and disability access protections.
The FCC is expected to vote on the draft order on February 26. As Wheeler proclaimed that enactment of the draft order “will ensure the Internet remains open, now and in the future, for all Americans,” Senator Maria Cantwell (D- WA) agreed that Wheeler’s announcement “will set a clear framework for the innovation economy” as well as “a game-changing milestone for American innovation and consumers.” Speaking on behalf of net neutrality supporters, Public Knowledge CEO Gene Kimmelman told reporters that the draft order “signals that the Internet ecosystem will remain open to innovation and new opportunities.” Verizon Communications countered, however, that “heavily regulating the Internet for the first time is unnecessary and counterproductive.” AT&T hinted at legal challenges to come, cautioning that those who “assume Title II rests on bulletproof legal theories are only deceiving themselves.”