Yesterday, Federal Communications Commission (FCC) Chairman Tom Wheeler issued a press release stating that the agency will revisit the Open Internet issue and consider new rules to replace those that the DC Circuit vacated on January 15, 2014, in Verizon v. FCC. (See the client alert here.) Wheeler stated that, although it struck down two of the three core Open Internet rules, the Court affirmed the FCC’s authority under Section 706 “to encourage broadband deployment” and “upheld the Commission’s judgment that Internet freedom encourages broadband investment[.]” Apparently emboldened by these judicial findings, Wheeler exhorts his “fellow commissioners” to do the following:

  • Enforce the “transparency” rule that the DC Circuit left in place. This rule requires broadband providers to disclose clearly to consumers what level of performance they can expect from their service.
  • Craft a replacement “anti-blocking” rule. The Court struck down the rule that would have prohibited broadband providers from blocking access to lawful Internet content. Wheeler noted that the Court did not disagree with the goal, but it found that “the Commission had not provided sufficient legal rationale for its existence.”
  • Craft a replacement “non-discrimination” rule. The Court also struck this rule that would have prohibited broadband providers from delivering their own Internet content to consumers faster than the content of third parties. Wheeler wants the FCC to set a new, “enforceable legal standard that provides guidance and predictability” to providers, consumers, and content providers in addition to reviewing disputes “on a case-by-case basis” and defining network management practices that the FCC “would view with particular skepticism.”

Chairman Wheeler also stated that the potential re-classification of broadband as a Title II common carrier service remains “on the table.” Many parties had urged the FCC to adopt this classification in the Open Internet Order, and the DC Circuit’s opinion expressly preserved that option for the Commission.

The Chairman closed by stating that “the FCC must stand strongly behind its responsibility to oversee the public interest standard and ensure that the Internet remains open and fair.” Wheeler’s fellow Commissioners, Republican appointees Ajit Pai and Mike O’Rielly, expressed dismay that the FCC is “tilting at windmills” by re-opening the Open Internet debate, comparing the move to the film Groundhog Day. Their individual statements are available here and here.

A new docket, titled “Protecting and Promoting the Open Internet,” has been opened at Chairman Wheeler’s request. The public and interested parties again will be invited to submit comments on whether, and if so how, the FCC can adopt replacement rules. Expect another Notice of Proposed Rulemaking to issue soon that will pose questions, suggest possible rules, and set forth “tentative conclusions” as to the necessity of specific Open Internet regulations.