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Both Sides Make Closing Net Neutrality Arguments as Decision Looms

The debate has now shifted from whether the FCC should regulate broadband lines under Title II to how to do it.

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Last-minute arguments about new net neutrality rules have been piling up at the Federal Communications Commission over the holidays as expectations rise that Chairman Tom Wheeler will unveil his latest proposal in the next few weeks.

On Tuesday, several tech industry associations, including the Computer & Communications Industry Association and startup group Engine, filed a joint letter asking FCC officials to use a “light-touch policy framework” when writing new rules to prohibit discriminatory delivery of Internet traffic.

Most of the final arguments are variations on the same themes that have been heard throughout the debate: Internet providers don’t want the FCC to re-regulate broadband service, while net neutrality proponents are pushing the agency in that direction.

One thing that has changed in the ongoing, eye-glazing debate over legal justifications is that both sides now appear to assume that Wheeler will propose reversing the FCC’s decade-old decision to deregulate Internet lines. That’s not a bad bet, since the odds of Wheeler tilting that direction increased dramatically in November after President Obama suggested he do it.

A 2014 protest by net neutrality activists outside the FCC in Washington
Net neutrality activists protest outside an FCC meeting earlier this year.

Notably, the conversation has now shifted from whether to re-regulate Internet lines under Title II of the Communications Act to how the agency could do it. Internet providers are urging the FCC to use few if any sections of Title II, while net neutrality proponents are pressing the agency to rely on a handful of key sections.

On Christmas Eve, Comcast* sent a 26-page letter to the FCC laying out its concerns about Title II and, in particular, how the agency should forbear from using most of the law.

“Emotion and hyperbole are substituting for facts, and the highly politicized environment risks impeding sound legal reasoning and wise policy choices,” Comcast warned in the missive, pointing out that using Title II wouldn’t explicitly prohibit broadband providers from offering fast-lane priority service.

The cable industry called re-regulation of Internet lines a “profound mistake” but said if the agency goes that route it should “at a bare minimum” pair it with “immediate, nationwide forbearance from all of Title II’s obligations and restrictions.”

On the other side, consumer groups have been showering FCC lawyers with arguments about how the agency can use key sections of Title II to ensure Internet providers don’t discriminate against rivals or create fast-lane service that leaves others behind.

Three short sections of the law (sections 201, 202 and 208, for any lawyers reading this) are “bedrock provisions” and would be enough to “enforce strong rules against application-specific discrimination and access fees,” said Marvin Ammori, a lawyer who has helped several startups advocate for net neutrality rules, during a mid-December meeting with senior FCC attorneys.

Public interest group Public Knowledge offered a 24-page argument for re-regulating Internet lines, particularly extending net neutrality protections over wireless networks. It argued the agency shouldn’t just automatically forbear from using parts of the law, suggesting instead the FCC “use interim rules to give itself time to determine where forbearing would actually serve the public interest.”

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

This article originally appeared on Recode.net.

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