On Thursday the Federal Communications Commission (FCC) voted in favor of the proposed net neutrality regulations. The purpose of the proposed rule making is to protect consumers from harms identified in the 2010 Open Internet Order.
Christine Fargenstein of the Wireline Bureau presented net neutrality as an item for consideration in the meeting. “The goal of this notice is to find the best approach to protecting and promoting Internet openness…the notice proposes to retain the definitions and the scope of the 2010 rules,” Fargenstein said. “It seeks comment however on whether to revisit the scope of the 2010 rules, including with respect to the differential treatment accorded to mobile and fixed forms of broadband Internet access.”
In January, a DC federal appeals court struck down the 2010 Federal Communication Commission’s net neutrality rules. The rules prevented Internet service providers from blocking or prioritizing Internet traffic. There are now no legally enforceable rules to protect and promote an open Internet.
Part of the question is whether the FCC has the authority to regulate the Internet. The court believed the FCC overstepped its bounds. A previous FCC decision put broadband companies out of the scope of their authority by classifying them in a way that exempts them from being treated as a common carrier.
Thursday’s meeting began with a statement from Julie Veach, Chief of the Wireline Competition Bureau, which seeks broad public comment on the best way to protect an open internet. She says the proposed rules are meant to promote an open internet and as a platform for “innovation, competition, economic growth and free expression as well as being a driver of broadband investment and deployment.”
They also requested discussion as to whether Section 706, Title 2, or another source of legal authority is best suited to promoting an open Internet. Proceeding under Title 2 would give the FCC authority over wireless.
A statement followed from the bench commissioner Mignon Clyburn, in which she shared her mother had called to discuss public policy, something that had never happened before in her service. The anecdote was meant to reflect general public confusion over the issue and the the importance of the Internet to the general public. She followed with a discussion of open internet, explaining it in terms to promote understanding of all the issues and the involvement of the FCC.
“At it’s core, an open Internet means consumers, not a company, not the government determine winners and losers. It is a free market at it’s best.” Klemmer said. “Without rules governing a free and open Internet, it is possible that companies, fixed and wireless broadband providers, could independently determine whether they want to discriminate or block content, pick favorites, charge higher fees or distort the market.”
Jessica Rosenworcel said she would have taken more time with the new rules and ask for more input from the public. “Our internet economy is the envy of the world.”
Commissioner Ajit Pai recommended the FCC seek guidance from Congress. He feels the proposal has sparked such a public date yet there is a bipartisan consensus on a free and open Internet. In 2004, FCC commissioner Powell outlined four principles of Internet freedom.“The freedom to access lawful content, the freedom to use applications, the freedom to attach personal devices to the network and the freedom to obtain service plan information.” The Internet policy statement was adopted in 2005 based on these principles.
Pai said the four Internet freedom principles have fostered growth and investment in the internet and infrastructure and made the United States the “epicenter of online innovation.” Although committed to protecting these freedoms, he believes they would be best be governed under Clinton’s telecommunications act in 1996, promoting a free market unfettered by federal or state regulations.
“In short, getting the future of the internet right is more important than getting this done right now,” Pai said. “We are not confronted with an immediate crisis that requires immediate action. And if we are going to usurp congress’ role, make fundamental choices for the American people, we must do better than the process that led us here today. I respectfully dissent.”
Commissioner Michael O’Rielly spoke with a strongly worded dissent. “As I’ve said before, the premise for imposing net neutrality rules is fundamentally flawed and rests on a faulty foundation of make believe statutory authority.”
He expressed congress never intended section 706 to be taken as FCC authority to regulate the Internet. “…the notice doesn’t stop there, it takes comment on ways to construe additional language in section 706 and even suggests using section 230b to broaden the scope of the commissions usurped authority. This is absurd.”
O’Rielly spoke with passion as he boldly stated, “Now the commission is trying to cast an even wider net of authority I fear that other services and providers could become ensnared in the future. And just in case section 706 proves to be inadequate for this regulatory boondoggle the notice explores upending years of precedent and investment by reclassifying broadband internet access as a Title 2 service…applying monopoly era rules to modern broadband services solely to impose unnecessary and defective net neutrality regulations.”
FCC Chairman Tom Wheeler spoke last, speaking similarly as he has in the past regarding the net neutrality issue and the FCC’s role in regulating it. “We are dedicated to protecting and preserving an open Internet. And as commissioner Clybourne much more eloquently pointed out, what we’re dealing with today is a proposal, not a final rule. With this notice we are asking for specific comment on different approaches to accomplish the same goal, an open internet.”
This portion of the meeting ended with FCC net neutrality rules passing in a 3-2 vote.
In theory, it seems everyone is in favor of an open Internet. The question is whether the FCC has the authority to regulate it and if so under which rules. How this will affect the cloud and hosting community is far reaching. The next 120 days of public commentary will be critical in affecting how the Internet moves forward from here.