FCC pressured to regulate broadband in net neutrality spat

Net neutrality advocates call on the FCC to reclassify broadband as a regulated, common-carrier service

Critics who say a new U.S. Federal Communications Commission proposal to restore net neutrality rules is too weak are increasing pressure on the agency to reclassify broadband as a regulated, common-carrier service like the traditional telephone network.

Net neutrality advocates and members of the public in recent days have pushed the agency to redefine broadband as a common carrier subject to a wide-ranging set of regulations, including interconnection rules and geographical service obligations, instead of adopting a proposal announced last week by FCC Chairman Tom Wheeler.

Wheeler's proposal, scheduled to be released to the public on May 15, would allow broadband providers to engage in commercially reasonable traffic management and, in limited cases, allow providers to charge some Web services for priority traffic, according to preliminary information from the FCC. Wheeler proposed the new rules after an appeals court, in January, threw out an earlier version of the FCC's net neutrality regulations.

The possibility of pay-for-priority service has raised an outcry among some Internet users, digital rights groups and Democratic lawmakers, with critics saying Wheeler's plan would gut net neutrality protections for consumers.

Even the most strong advocates of reclassification acknowledge, however, that such a move by the FCC would lead to another court battle. Still, it's within the FCC's authority to reclassify broadband after it deregulated the service in 2005, said Matt Wood, policy director for digital rights group Free Press.

The FCC would "get sued, of course," he said. "ISPs would argue that the facts haven't changed, and thus that the FCC can't change course now. But there's just no reasonable or legally sound way to argue that the FCC gets to make this decision one time and yet can never make a different decision."

On the other side, several Republican lawmakers have objected to Wheeler's decision to reintroduce any net neutrality rules after the court struck down the earlier version. Net neutrality rules are "a solution in search of a problem," U.S. Representatives Fred Upton, a Michigan Republican, and Greg Walden, an Oregon Republican, said in a joint statement.

"The marketplace has thrived and will continue to serve customers and invest billions annually to meet Americans' broadband needs without these rules," said the two senior members of the House Energy and Commerce Committee.

Wheeler, in a blog post Tuesday and a speech before the National Cable and Telecommunications Association trade show in Los Angeles Wednesday, defended his proposal.

"All regulatory options remain on the table," he wrote in the blog post. "If the proposal before us now turns out to be insufficient or if we observe anyone taking advantage of the rule, I won't hesitate to use [reclassification]."

In his speech Wednesday, Wheeler called his net neutrality proposal "tough and enforceable."

The FCC won't allow broadband providers to prioritize some traffic at the expense of other traffic, Wheeler said. "We will not allow some companies to force Internet users into a slow lane so that others with special privileges can have superior service," he said.

Still, Free Press and other groups have renewed their push for reclassifying broadband after Wheeler announced his new plan. Reclassifying broadband is the "only thing to do ... to protect the public and safeguard the Internet's future," Craig Aaron, Free Press' president and CEO, wrote at the Huffington Post.

Free Press and Reddit users are organizing a protest for May 15, the day the FCC is scheduled to vote to open up Wheeler's proposal for public comments.

Reddit users should contact their lawmakers and the FCC and demand "that broadband be reclassified as a telecommunications service," wrote Reddit user aFortyDegreeDay. They should also ask Web sites to black out their home pages in support of net neutrality, similar to a Web blackout that helped kill two online copyright enforcement bills in January 2012, aFortyDegreeDay recommended.

In addition, a petition calling on the FCC to reclassify broadband on the WhiteHouse.gov's We the People site has more than 5,000 signatures since it went live Friday.

"We have benefited enormously from the egalitarian way in which the Internet treats information regardless of type or source, [and] some of the most successful companies in America owe their existence this feature," the petition says.

The petition incorrectly asserts, however, that the U.S. Court of Appeals for the District of Columbia Circuit gave the FCC a "specific instruction" to reclassify broadband providers as common carriers as a way ensure net neutrality.

The appeals court did point the FCC toward a section of the Telecommunications Act that would allow the agency to enforce net neutrality rules, but it wasn't the section that lays out common-carrier regulations. Instead, the appeals court pointed to a section that tasks the FCC with ensuring speedy broadband deployment.

Judge David Tatel's January opinion is inconclusive about reclassification, although he finds that the FCC cannot impose common-carrier regulations on broadband providers under the agency's own classification of broadband as a lightly regulated information service.

"We think it obvious that the Commission would violate the Communications Act were it to regulate broadband providers as common carriers," Tatel wrote. "Given the Commission's still-binding decision to classify broadband providers," any common-carrier rules would violate a section of the law saying telecom carriers can only be treated as common carriers when they provide telecom services.

But the court didn't prohibit the FCC from changing that classification decision, net neutrality advocates said.

Still binding "doesn't mean it's forever binding," Marvin Ammori, a net neutrality advocate and fellow at the New America Foundation, said in an email. "Just still. Can be changed."

In addition, the U.S. Supreme Court, in a 2005 decision called Brand X, gave the FCC the discretion to decide how to classify broadband, Wood and Ammori said.

The Supreme Court "didn't say, 'you're right FCC; broadband is an information service,'" Wood said. "It said this is the FCC's call to make."

Grant Gross covers technology and telecom policy in the U.S. government for The IDG News Service. Follow Grant on Twitter at GrantGross. Grant's email address is grant_gross@idg.com.

Copyright © 2014 IDG Communications, Inc.

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