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Net Neutrality Rules Are Out: New Twist on Old Proposal

FCC Chairman Tom Wheeler lays out his proposal, which sounds pretty similar to past efforts.

Dabarti CGI/Shutterstock

Federal Communications Commission Chairman Tom Wheeler is launching a new effort to craft net neutrality rules, agency officials said Wednesday, basically proposing a do-over under a different part of the law.

As we mentioned last week, Wheeler has been dropping hints for weeks about his thinking on how to approach Open Internet, or net neutrality, rules.

On Wednesday, Wheeler’s aides laid out his forthcoming proposal in a little more detail. He’s basically dusting off the agency’s previous net neutrality rules (with a few tweaks) and trying them again, using a different part of the law to justify them. This marks the third time the FCC has tried to craft net neutrality rules.

Wheeler’s proposal represents a win for Internet providers, who have been fighting a campaign by consumer groups to get the FCC to regulate broadband lines more strictly. Comcast Corp. called Wheeler’s proposal “a thoughtful approach” while Verizon Communications said it “remains committed to an open Internet.”

Since Wheeler, a former industry lobbyist, never mentioned a desire to regulate broadband lines the way Internet activists had hoped, today’s announcement wasn’t a surprise. It also means that the agency will likely avoid a fight with Internet providers (and their congressional supporters) over new rules. That could could help Wheeler focus other things he cares about, such as improving broadband in schools and upcoming airwaves auctions, as well as things he’s forced to care about, like Comcast’s $45 billion deal to acquire Time Warner Cable.

The FCC will try to write net neutrality rules that achieve goals the agency has outlined before: Guarantee Internet providers don’t block or discriminate against competitors and increase transparency so consumers have a better sense of what’s going on.

Last month, a federal appeals court tossed the FCC’s second attempt at crafting net neutrality rules. The court found that the FCC has some authority over Internet lines under Section 706 of the Telecommunications Act of 1996, which gives the agency power to encourage the spread of broadband networks. But the court threw out the FCC’s Open Internet rules anyway, saying the agency screwed up by citing the wrong part of the telecom law. FCC officials said Wednesday that they won’t appeal that decision.

Activists and consumer groups wanted the FCC to re-regulate Internet lines under a different part of the law (Title II) which was written for old phone networks. That would give the FCC clear authority to enforce net neutrality rules, but it could also require Internet providers to comply with some old unrelated provisions that make no sense for broadband networks.

Former FCC Chairman Julius Genachowski briefly went down the road to re-regulation of Internet lines a few years ago before AT&T Inc., Verizon Communications and other Internet providers went ballistic and complained to the White House and Congress. He quickly backed down.

Yesterday, the White House reaffirmed its support for Wheeler’s approach while responding to a petition from Internet activists who want the FCC to take bolder action. But White House aides dodged the question of whether they support re-regulation, saying that it’s up to the FCC. Wheeler appears to be leaving the threat of re-regulation of Internet lines as a last resort.

Not surprisingly, consumer groups were not happy about Wheeler’s announced path forward. “Pretending the FCC has authority won’t actually help Internet users when websites are being blocked or services are being slowed down. If the Internet is to continue to thrive, we need decisive action and clear protections under the law,” said Free Press president Craig Aaron in a statement.

Another interest group, Public Knowledge, took a more resigned tone, saying it was “skeptical that the FCC’s initial focus on section 706 will yield meaningful results” but happy Wheeler was keeping his options open. Consumers Union, publisher of Consumer Reports magazine, agreed, saying in a statement that “it’s a good thing that they haven’t shut the door on Title II reclassification, because that’s the best way to hold Internet service providers accountable.”

Wheeler did bring up something Wednesday that could give some Internet providers heartburn. He said the FCC will look at whether some states have been improperly restricting the ability of cities and towns to offer their own high-speed Internet services to residents.

At least 20 states now have some restrictions on municipalities offering competing broadband services, thanks to lobbying by local Internet providers. “The commission will look for opportunities to enhance Internet access competition,” Wheeler said in a statement Wednesday, noting that municipal broadband restrictions are “one obvious candidate for close examination.”

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