This past Monday, November 10, 2014, President Obama urged the Federal Communications Commission (“FCC”) in a written statement to “reclassify consumer broadband service under Title II of the Telecommunications Act — while at the same time forbearing from rate regulation and other provisions less relevant to broadband services.” This reclassification would allow the FCC to treat Internet Service Providers (“ISPs”) as common carriers and, therefore, give it the authority to compel ISPs to treat all Internet traffic the same regardless of the source.
The FCC’s previous attempts at net neutrality rules have been unsuccessful. In 2010, instead of reclassifying broadband Internet services as telecommunications services, the FCC adopted the Open Internet Order, which imposed transparency and anti-blocking requirements on fixed and mobile broadband providers, and anti-discrimination requirements upon fixed broadband providers. To justify its authority to impose these regulations, the FCC relied on Section 706 of the 1996 Telecommunications Act. Under Section 706(a), the FCC must “encourage deployment of such capability by utilizing . . . various tools including measures that promote competition in the local telecommunications market, or other regulating methods that remove barriers to infrastructure investment.” The FCC argued that Internet openness enables “a virtuous circle of innovation,” which in turn increases end-user demand, which drives network improvements, ultimately leading to further innovative network uses.
Following the January 2014 decision of the U.S. Court of Appeals for the District of Columbia in Verizon v. FCC, 740 F.3d 623, 640 (D.C. Cir. 2014) upholding the Order in part and striking it down in part, the FCC issued an Open Internet Notice of Proposed Rulemaking, which sought input on the best approach to protect and promote open Internet. While ensuring that all regulatory approaches remain on the table, FCC Chairman Wheeler cautioned against ignoring the Verizon court decision; he feared that ignoring the “blueprint” the Verizon court laid out for the FCC would invite many years of litigation and delay.
Since May, the FCC has received almost 4 million public comments, and President Obama’s statement on Monday escalated this heated debate to a new level. Chairman Wheeler welcomed the President’s submission, while making it clear that it remains an independent regulatory agency. Many proponents of net neutrality, such as the Electronic Frontier Foundation, applauded the President for his Monday statement. On the other hand, many argue that President Obama’s statement is a gross oversimplification of what is, in reality, a very complex issue. On Wednesday, November 12, Representatives from the House and Senate sent a letter to Chairman Wheeler addressing the challenges with reclassifying broadband providers as telecommunication services under Title II, even if the FCC chooses to use its forbearance authority to apply only part of Title II. The House Energy and Commerce Committee will hold a hearing on the commission’s consideration of Net Neutrality rules on Wednesday, December 10.
Ultimately, if the FCC wants new open Internet rules by the end of the year, it needs to call for a vote in its December 11th meeting. However, following President Obama’s statement this past Monday, there have been reports that the FCC will delay the vote until 2015. Ultimately, there are many proposals on the table, and there is only speculation as to which direction the FCC will take the public in its goal towards keeping the Internet open to free expression and innovation.
Reporter, Jennifer Raghavan, San Francisco, +1 415 318 1234, jraghavan@kslaw.com.
