In a widely anticipated and historic development, the FCC voted 3-2 along party lines yesterday to reclassify fixed and wireless broadband network services as telecommunications services under Title II of the 1934 Communications Act. Adopted during a spirited public meeting where net neutrality supporters greeted FCC Chairman Tom Wheeler with a standing ovation, the FCC’s order represents a sea change in the agency’s treatment of the Internet, which had previously been classified as a Title I information service that is exempt from pricing, access, and other requirements that apply to Title II common carriers.
The order also caps a process that began a year ago when the DC Circuit Court of Appeals, at the behest of Verizon Communications, struck down the FCC’s 2010 Open Internet order. The FCC had premised the 2010 rules on the agency’s authority to promote advanced telecommunications capability as specified by Section 706 of the 1996 Telecommunications Act The court concluded, however, that rules prohibiting broadband Internet service providers (ISPs) from blocking or degrading lawful web content and engaging in discrimination with respect to the transmission of Internet traffic constituted an attempt by the FCC to subject ISPs to Title II regulation, despite earlier FCC pronouncements that classified broadband as a Title I service. While yesterday’s order restores anti-blocking, anti-discrimination and other rules that were struck down last year, the decision to reclassify broadband services under Title II attempts to resolve the court’s concerns by providing the FCC with the legal foundation that the appellate panel decreed to be missing in the 2010 order.
The new rules forbid blockage of access to lawful content and the impairment of connectivity on the basis of content. They also bar paid prioritization arrangements between ISPs and websites and the establishment of web traffic “fast lanes.” Interconnection agreements between facilities-based ISPs and companies such as Netflix will be subject to FCC review on a case-by-case basis in accordance with “just and reasonable” standards that are applied to common carriers. The rules, however, prescribe a tailored approach to Title II through which the FCC will use its forbearance authority to refrain from imposing pricing and other restrictions on fixed and wireless ISPs that apply to wireline phone networks. Dismissing concerns that the new rules represent a revival of traditional utility regulation, Wheeler told reporters, “these are a 21st centuryset of rules for a 21st century industry.”
Notwithstanding Wheeler’s contention that the order uses “all of the tools in our toolbox to protect innovators and consumers,” FCC Commissioner Ajit Pai maintained in a dissenting statement that “the Internet is not broken” and “there is no problem to solve.” Lamenting, “the commission has breathed new life into the decayed telephone regulatory model and applied it to the most dynamic, freewheeling and innovative platform in history,” National Cable & Telecommunications Association President Michael Powell declared that, “today, the FCC took one of the most regulatory steps in its history.” Web service and content firms, public interest groups and other advocates of net neutrality, however, celebrated the FCC ruling as a major victory. Free Press President Craig Aaron cited the tidal wave of public comments filed with the FCC on the topic of net neutrality in observing that “millions of people came to the defense of the open Internet to tell Washington, in no uncertain terms, that the Internet belongs to us all.” Asserting that the order enacts “the strongest net neutrality rules in history,” an official of Public Knowledge applauded the FCC for “embracing its Title II authority.”