The FCC established a new docket (GN 14-28) to address the January 2014 remand of its Open Internet (Net Neutrality) Order by the U.S. Court of Appeals. TMI Regulatory Bulletin Service subscribers see FCC Bulletin dated January 21, 2014. See previous Blog postings in The Regulatory Mix – January 16, 2014, and The Regulatory Mix – February 4, 2014.The FCC will consider the court’s decision and what actions it should take. It invited interested parties to file comments and said that comments filed within the next 30 days would be “especially helpful.”
Why is a new proceeding necessary?
On December 23, 2010, the FCC released the Open Internet Order that established high-level rules requiring transparency and prohibiting blocking and unreasonable discrimination. In January 2014, the U.S. Court of Appeals affirmed the FCC’s authority to regulate broadband Internet access service and upheld the transparency rule, but vacated the no-blocking and no unreasonable-discrimination rules as impermissible common carrier regulation of an information service. Specifically, the Court affirmed that §706 of the Communications Act gives the FCC authority to encourage broadband deployment by, among other things, removing barriers to infrastructure deployment, encouraging innovation, and promoting competition. The Court also recognized the importance of ensuring that edge providers (entities that use the network to deliver goods and services) can reach people who use the Internet.
What subjects will be addressed in the new rulemaking?
In his separate statement, FCC Chairman Wheeler said that the Court “invited the Commission to act to preserve a free and open Internet. I intend to accept that invitation by proposing 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.” Accordingly, Wheeler said he would ask his fellow commissioners to:
- Enforce and enhance the transparency rule, by considering ways to make the rule even more effective.
- Fulfill the “no blocking” goal by considering, consistent with the Court opinion, how the FCC can 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.
- Fulfill the goals of the non-discrimination rule by considering (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 FCC would view with particular skepticism.
Wheeler also said the FCC would:
- Keep the option of Title II regulation “on the table.” Wheeler said that “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. Accordingly, the Commission’s docket on Title II authority remains open.”
- Forgo judicial review of the Court of Appeals decision.
- Seek comment through a formal rulemaking on the specific rules for preserving and protecting the open Internet with the focus on issues raised by the Court opinion.
- Hold major Internet Service Providers to their commitment to continue to honor the safeguards articulated in the 2010 Open Internet Order until new rules are put in place.
- Look for opportunities to enhance Internet access competition.
What is the status of the transparency rule?
The FCC stressed that transparency rule remains in full force and effect. Thus, broadband Internet access service providers must continue to disclose the network management practices, performance characteristics, and terms and conditions of their broadband services.
Parties may continue to submit either formal or informal complaints to the FCC regarding violations of the transparency rule, as described in the Open Internet Order. Informal complaints may be filed through the FCC’s web site. Formal complaints may be filed in accordance with the FCC’s established formal complaint rules. Parties filing formal complaints may request expedited treatment under the Enforcement Bureau’s Accelerated Docket procedures.
Did any other Commissioners make statements?
As of the time this blog was posted three statements were available.
Commissioner Pai released a statement saying:
Today’s announcement reminds me of the movie Groundhog Day. In the wake of a court defeat, an FCC Chairman floats a plan for rules regulating Internet service providers’ network management practices instead of seeking guidance from Congress, all while the specter of Title II reclassification hovers ominously in the background. I am skeptical that this effort will end any differently from the last.
When Congress told us to encourage broadband deployment by removing barriers to infrastructure investment, it also established the policy of the United States to “preserve the vibrant and competitive free market that presently exists for the Internet . . . unfettered by Federal or State regulation.” Whatever the Commission does as it moves forward, it must take that statutory command to heart.
The Internet was free and open before the FCC adopted net neutrality rules. It remains free and open today. Net neutrality has always been a solution in search of a problem.
Commissioner O’Reilly issued a statement saying:
I am deeply concerned by the announcement that the FCC will begin considering new ways to regulate the Internet. As I have said before, my view is that section 706 does not provide any affirmative regulatory authority. We should all fear that this provision ultimately may be used not just to regulate broadband providers, but eventually edge providers.
It appears that the FCC is tilting at windmills here. Instead of fostering investment and innovation through deregulation, the FCC will be devoting its resources to adopting new rules without any evidence that consumers are unable to access the content of their choice.
Commissioner Clyburn issued a statement saying:
I applaud Chairman Wheeler for announcing a path forward to ensure a free and open Internet. The Commission must act expeditiously to adopt clear, enforceable rules that protect the openness of the Internet while continuing to promote innovation and investment. I am also pleased that the Chairman announced that the Commission will look for opportunities to enhance broadband competition including examining restrictions on the ability of municipalities to offer broadband — restrictions that I have long advocated be eliminated. I look forward to working with the Chairman on these important issues.