FCC To Map Out New Neutrality Regs
- by Wendy Davis @wendyndavis, February 19, 2014
The Federal Communications Commission said today that it intends to move forward with a plan to prohibit broadband carriers from blocking or degrading traffic.
“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,” FCC Chairman Tom Wheeler stated Wednesday. He added that he has asked the FCC staff to consider how to “ensure that edge providers are not unfairly blocked, explicitly or implicitly, from reaching consumers, as well as ensuring that consumers can continue to access any lawful content and services they choose.”
Wheeler's move comes in response to last month's appellate court decision invalidating the agency's 2010 Net neutrality rules. Wheeler said today that the FCC is not going to appeal that decision. He also is not proposing at this time to reclassify broadband as a telecommunications service -- even though some observers have said that doing so is the only way to pass enforceable neutrality rules.
The previous neutrality rules, which were passed by a 3-2 vote in 2010, prohibited all broadband providers from blocking or degrading content. The former rules also prohibited wireline -- but not wireless -- providers from engaging in unreasonable discrimination.
Last month, the D.C. Circuit Court of Appeals struck down those regulations on the grounds that they treated broadband providers as “common carriers.” (Common carriers, like phone companies, aren't allowed to engage in censorship.) The FCC originally classified Internet access as a telecommunications service, which is subject to common carrier obligations. But in 2002, the agency reclassified broadband as an information service, which isn't subject to common carrier obligations.
After the court struck down the neutrality rules, broadband advocates called on the FCC to reclassify broadband as a telecommunications service, which is regulated under Title II of the Telecommunications Act. Wheeler said on Wednesday that the agency isn't ruling out doing so. But for now, the FCC will proceed under a different provision of the Telecommunications Act -- Section 706 -- which authorizes the FCC to promote broadband deployment.
But Net neutrality advocates say that Section 706 doesn't empower the FCC to impose neutrality rules that will hold up in court. “Pretending the FCC has authority won't actually help Internet users when Web sites are being blocked or services are being slowed down,” Free Press President and CEO Craig Aaron said in a statement. “The FCC can’t protect free speech and prevent discrimination under the so-called Section 706 authority discussed in today's announcement. Last month's court decision made that crystal clear.”
Sen. Al Franken (D-Minn.), who has long voiced support for neutrality principles, also questioned the FCC's decision to move forward under Section 706. “I am pleased that FCC Chairman Tom Wheeler indicated that he’s committed to preserving Net neutrality. But it’s critically important that the approach the FCC takes achieves that goal, and there are some real questions about whether the path they’ve chosen will actually accomplish that,” Franken stated Wednesday.
It would have made more sense if this had been included as part of some of the immunity provisions, that, in exchange for not throttling or degrading content, an ISP is given common carrier status. The ISP can still offer "preferred" service such as faster connections or more bandwidth or exemption from usage caps or any other sweetener to a company that wants to pay extra, but all basic connections to all other networks or providers must be on an equal and non-discriminatory basis from anyone else or the carrier's own service provision. If it wants to give its own carriage or companies that partner with it something "extra" that's fine as long as it doesn't change the basic service level for anyone else.
I note that Comcast used to have unannounced caps on how much you could use and was throttling BitTorrent traffic, and lying about it claiming they weren't, until the Associated Press caught them doing exactly what they claimed they were not doing. That's the clear and obvious example of misconduct that should not be tolerated. If you're going to treat any class of traffic differently, it has to be obvious and open, and regular communications traffic should not be discriminated against. If you use a freeway during rush hour and you have multiple people in the car, you can use the HOV lanes. Otherwise you use the same traffic lanes as every other driver who doesn't qualify to use HOV.