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President Obama Backs Stronger Broadband Regulation in Big Win for Activists

Don’t be surprised if the FCC Chairman proposes regulating under Title II when he unveils a new net neutrality proposal.

Pete Souza/White House

President Obama came out in favor of the FCC re-regulating broadband lines under rules written for phone networks when the agency adopts new net neutrality rules, in a major win for Internet activists.

The White House released Obama’s net neutrality proposal Monday morning with a statement and video. While the president was careful to note that the FCC is an independent agency and can do what it wants, the announcement was clearly made to give FCC Chairman Tom Wheeler and other FCC Democrats political cover to go for broke when adopting new rules over Internet lines.

Obama had previously mentioned he didn’t like Wheeler’s first proposal — which would allow Internet providers to sell fast-lane service to content companies. But the president had carefully stayed out of the debate about the legal technicalities of how the FCC could write legally enforceable rules.

Wheeler’s inability to find a path forward without re-regulating Internet lines under Title II of the Communications Act of 1934 — which was written for copper-line phone networks — came into sharp focus last week after activists and broadband providers complained about a compromise plan his staff floated last month.

Obama’s move Monday is likely to upset broadband providers, many of whom have been campaign donors, but given the president isn’t running for office again their ire may have little impact. Verizon Communications, Comcast* and other providers are likely to turn to the new Republican-controlled Congress for help with the rules, although it would be hard for lawmakers to do much about it.

President Obama said Monday that the FCC should regulate consumer broadband service under Title II, “while at the same time forbearing from rate regulation and other provisions less relevant to broadband services.”

Broadband providers have fought having their lines regulated under Title II because they don’t want regulators setting the rates they can charge to consumers and business customers. The rules would also open up the prospect of requiring them to sell wholesale access to their networks to rivals. In the statement, the president basically said that he thinks the FCC should rule that those sorts of provisions shouldn’t apply to modern broadband networks.

He also backed applying the rules to wireless networks, since “the rules also have to reflect the way people use the Internet today, which increasingly means on a mobile device.”

And in a win for Netflix and other middle-mile Internet providers, the president said that the FCC should adopt new transparency rules that don’t just apply to the last mile of service to consumer homes, but to middle-mile connections as well. “The connection between consumers and ISPs — the so-called ‘last mile’ — is not the only place some sites might get special treatment,” the White House said.

In a statement, Verizon said re-regulating lines under Title II would be a “radical reversal of course” that would “also face strong legal challenges and would likely not stand up in court.”

The whole statement is here, but this is the key section laying out what the White House thinks the FCC’s rules should do:

The FCC is an independent agency, and ultimately this decision is theirs alone. I believe the FCC should create a new set of rules protecting net neutrality and ensuring that neither the cable company nor the phone company will be able to act as a gatekeeper, restricting what you can do or see online. The rules I am asking for are simple, common-sense steps that reflect the Internet you and I use every day, and that some ISPs already observe. These bright-line rules include:

  • No blocking. If a consumer requests access to a website or service, and the content is legal, your ISP should not be permitted to block it. That way, every player — not just those commercially affiliated with an ISP — gets a fair shot at your business.
  • No throttling. Nor should ISPs be able to intentionally slow down some content or speed up others — through a process often called “throttling” — based on the type of service or your ISP’s preferences.
  • Increased transparency. The connection between consumers and ISPs — the so-called “last mile” — is not the only place some sites might get special treatment. So, I am also asking the FCC to make full use of the transparency authorities the court recently upheld, and if necessary to apply net neutrality rules to points of interconnection between the ISP and the rest of the Internet.
  • No paid prioritization. Simply put: No service should be stuck in a “slow lane” because it does not pay a fee. That kind of gatekeeping would undermine the level playing field essential to the Internet’s growth. So, as I have before, I am asking for an explicit ban on paid prioritization and any other restriction that has a similar effect.

* Comcast owns NBCUniversal, which is a minority investor in Revere Digital, Re/code’s parent company.

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