FCC Chairman Explains Next Steps to Protect an Open Internet

In a blog post yesterday, FCC Chairman and former telecom lobbyist Tom Wheeler wrote that he is “a strong believer in the importance of an Open Internet.” In response to what Wheeler views as “misinformed” commentaries regarding the Open Internet Notice of Proposed Rulemaking (NPRM) currently before the FCC, he offers two points of clarification: 1) This is not a final decision, but a formal request for input on the proposal, and 2) “all options for protecting and promoting an Open Internet are on the table.”

“The NPRM is seeking input on the best way to protect and promote the Open Internet,” writes Wheeler, who suggests that Net Neutrality has so far been addressed “with no lasting results” and “is being decided on an ad hoc basis by big companies.”

In response to concerns that the proposal will lead to “fast lane” problems and a two-speed Internet, he emphasizes that ISPs will not be able to degrade service available to all, ensuring an Internet that will remain “an open pathway.”

“The focus of this proposal is on maintaining a broadly available, fast and robust Internet as a platform for economic growth, innovation, competition, free expression, and broadband investment and deployment,” Wheeler says on the FCC blog.

He notes that “the best way to accomplish this is by exercising the FCC’s authority as delineated by the D.C. Circuit under the ‘commercially reasonable’ standard that the Commission has already implemented (and the court approved) in the Data Roaming Order.” However, he specifies what he believes is not “commercially reasonable”:

  • Something that harms consumers is not commercially reasonable. For instance, degrading service in order to create a new “fast lane” would be shut down.
  • Something that harms competition is not commercially reasonable. For instance, degrading overall service so as to force consumers and content companies to a higher priced tier would be shut down.
  • Providing exclusive, prioritized service to an affiliate is not commercially reasonable. For instance, a broadband provider that also owns a sports network should not be able to give a commercial advantage to that network over another competitive sports network wishing to reach viewers over the Internet.
  • Something that curbs the free exercise of speech and civic engagement is not commercially reasonable. For instance, if the creators of new Internet content or services had to seek permission from ISPs or pay special fees to be seen online such action should be shut down.

Wheeler says that he will not “hesitate to use Title II of the Communications Act of 1934 if he has to,” reports Gizmodo. “This is the authority the FCC uses to regulate telephone companies.”

“Net Neutrality advocates have long argued that the FCC should regulate the Internet under Title II, because that means Internet service providers would be treated like ‘common carriers’ that must act in the public interest,” notes Gizmodo. “This is currently how the telephone system is regulated. Specifically, Title II forbids ‘discrimination in charges, practices, classifications, regulations, facilities, or services for or in connection with like communication service.'”