FCC Chairman Tom Wheeler released a Fact Sheet describing his proposal for new Open Internet Rules. The proposal would reclassify all broadband Internet access services, whether wireline or mobile, as telecommunications services under Title II of the Communications Act. Both the retail service sold to end users and the service made available to edge providers would be reclassified. As a result, the FCC would, for the first time, be able to address complaints concerning the exchange of traffic between mass market broadband providers and edge providers and take appropriate enforcement action if it determines the interconnection activities of ISPs are not just and reasonable.
The proposal includes three “bright line” rules: No Blocking; No Throttling; and No Paid Prioritization. It also includes: (1) a general Open Internet conduct standard that ISPs cannot harm consumers or edge providers; and (2) enhancements to the existing transparency rule. The proposal includes exceptions for reasonable network management.
The proposal concludes that no further proceedings are needed before forbearance from some portion of Title II regulations can be granted. Accordingly, only the following major provisions of Title II regulation will apply to broadband Internet access service providers:
- Sections 201 and 202 (no unjust and unreasonable rates or practices)
- Section 208 (consumer complaints) and related enforcement provisions (Sections 206, 207, 209, 216 and 217);
- Section 222 (consumer privacy);
- Section 224 (access to poles and conduits);
- Sections 225 and 255 (access for people with disabilities)
- Portions of Section 254 (universal service) but not the obligation to contribute to the federal USF.
Broadband Internet access providers would not: be subject to rate regulation; have to file tariffs; be required to undertake last mile unbundling; or have to comply with the FCC’s accounting standards.
The proposal will apparently also addresses data services that do not go over the public Internet and therefore are not “broadband Internet access” services subject to Title II oversight (e.g., VoIP from a cable system or a dedicated heart monitoring service), by “ensuring these services do not undermine the effectiveness of the open Internet rules.” The Fact Sheet indicates that broadband providers’ transparency disclosures will continue to cover any offering of such non-Internet data services.
The FCC is scheduled to consider the issue at its February 26, 2015, Open Meeting. See the Chairman’s article in Wired Magazine here.
Reacting to Chairman Wheeler’s Fact Sheet, U.S. Sen. John Thune (R-S.D.), chairman of the Senate Committee on Commerce, Science, and Transportation Committee issued a Statement saying in part: “Chairman Wheeler’s proposal to regulate the Internet as a public utility is not about net neutrality – it is a power grab for the federal government by the chairman of a supposedly independent agency who finally succumbed to the bully tactics of political activists and the president himself. If the only objective behind the FCC’s new proposal was to protect an open Internet and establish net neutrality rules, we could accomplish that through bipartisan legislation and avoid the years of uncertainty and litigation created by Chairman Wheeler’s radical proposal…. As the public learns more details about the FCC’s overreaching proposal in the coming days and weeks, I believe that the merits of a legislative solution will become undeniable. I am determined to work with my colleagues to find a better path forward regardless of what the FCC decides.”
Taking a different approach, U.S. Sen. Bill Nelson (D-FL) issued a Statement saying: “The FCC is just doing its job. And I support Chairman Wheeler in his attempt to move ahead with rules to protect consumers and the openness of the Internet. I also look forward to working with Sen. Thune, hopefully in a bipartisan way, as we consider any legislation in the future.”