Just weeks after the D.C. Circuit Court of Appeals struck down the Federal Communications Commission’s net neutrality rules, agency Chairman Tom Wheeler vowed the agency will come up with new standards for an open Internet.
In 2010, the FCC, by a narrow vote of three commissioners to two, promulgated an order, In re Preserving the Open Internet, which became colloquially known as the “net neutrality” rules. The agency imposed disclosure, antidiscrimination, and antiblocking requirements on broadband providers out of concern that providers could prevent end-user subscribers from accessing other providers or degrading the quality of access to certain content providers.
In a challenge brought by a carrier, the D.C. Circuit held in January that while the FCC had not overstepped its jurisdictional bounds by issuing the order, the antidiscrimination and antiblocking provisions exceeded the scope of its authority.
In response to the decision, Wheeler said the agency has decided not to appeal. Instead, the chairman said he will work with his fellow commissioners to create a new set of rules that will comply with the federal appellate court’s opinion.
“Preserving the Internet as an open platform for innovation and expression, while providing certainty and predictability in the marketplace, is an important responsibility of this agency,” Wheeler said in his statement. Specifically, he plans to propose “rules that will meet the court’s test for preventing improper blocking of and discrimination among Internet traffic, ensuring genuine transparency in how Internet Service Providers manage traffic, and enhancing competition.”
In that regard, one option the FCC is considering is to base the new rules on Section 706 of the Telecommunications Act and create new standards and guidance for broadband providers. In that scenario, the FCC would consider three issues: “(1) setting an enforceable legal standard that provides guidance and predictability to edge providers, consumers, and broadband providers alike; (2) evaluating on a case-by-case basis whether that standard is met; and (3) identifying key behaviors by broadband providers that the Commission would view with particular skepticism.”
Wheeler also indicated that the agency can reclassify Internet access under the Communications Act as a telecommunications service. (In 2002, the FCC classified broadband providers as an “information” service that was not subject to common carrier rules, which include a prohibition on discrimination.) “As long as Title II – with the ability to reclassify Internet access service as a telecommunications service – remains a part of the Communications Act, the commission has the ability to utilize it if warranted,” Wheeler noted.
To read Wheeler’s statement, click here.
Why it matters: In addition to Wheeler’s statement setting out the FCC’s plans for a do-over on the net neutrality rules, the agency opened a new docket for public comment on the issue. The “Protecting and Promoting the Open Internet” docket will focus on issues raised by the D.C. Circuit opinion, Wheeler said, and he plans to recommend that the Commission seek input through formal rulemaking that includes public comment. If a second iteration of the rules moves forward, it could again be a split decision; of the four other commissioners, two issued statements in support of advancing new rules while two others expressed skepticism and concern.