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Federal Communications Commission chairman Tom Wheeler is facing a growing backlash from network neutrality supporters, once his allies, who've blasted his proposed regulations as inadequate to protect internet freedom.
Chairman Wheeler is scheduled to officially release his proposed rules at an FCC meeting on May 15. That makes the week between now and then a critical period in the network neutrality debate, as activists try to force Wheeler to rethink his proposal.
Why are network neutrality supporters upset?
President Obama pledged to appoint FCC commissioners who support network neutrality, and Wheeler is an avowed network neutrality advocate. But many network neutrality advocates felt betrayed when they learned last month that Wheeler's new proposal would permit ISPs to carve up their networks into "fast lanes" and "slow lanes."
Wheeler's proposal would require that any such plan be "commercially reasonable," and the chairman has vowed to "establish a high bar for what is 'commercially reasonable.'" A January decision of the DC Circuit Court suggested that the courts were open to a network neutrality rule based on the commercial reasonableness standard. But the standard comes with an unwieldy 16-factor test that critics say won't actually do much to constrain the behavior of large ISPs and protect consumers.
Who is pressuring Wheeler for tougher rules?
Wheeler is facing criticism on multiple fronts. Liberals in Congress and in the advocacy sector are critical of his plan. "This is the free speech issue of our time," said Sen. Al Franken (D-MN) in a YouTube video produced by the Progressive Change Campaign Committee. "We cannot allow the FCC to implement a pay-to-play system that silences our voices and amplifies that of big corporate interests." The PCCC was one of than 90 organizations that signed a letter on Thursday urging Wheeler to reconsider.
Many technology companies are dissatisfied with Wheeler's proposal. More than 100 of them sent a letter to Wheeler on Wednesday calling his plan a "grave threat to to the Internet" and asking him to reconsider. A number of prominent venture capitalists have also called for stronger protections.
David Pashman, the general counsel of Meetup, went to Washington on Friday to lobby members of Congress and FCC staffers in favor of network neutrality. "Pageload times and user experience is critically important to us," he says. "If the ability of our users to access our site is compromised, that puts us at a competitive disadvantage compared to a company with quicker pageloads."
Most importantly, Wheeler is facing pushback from his fellow commissioners. Wheeler needs three votes (including his own) on the five-member commission to start the process of adopting his rules. But one of his fellow Democrats, Jessica Rosenworcel, has called for a delay a vote on Wheeler's proposal in order to give the commission more time to seek public input. Given that Wheeler's proposal is not very popular with Republican commissioners either — Republican Ajit Pai is also calling for a delay — he is going to face an uphill battle to get it approved at the FCC's may meeting.
What would network neutrality supporters like the FCC to do instead?
Many network neutrality advocates, including the non-profit browser maker Mozilla, would like the FCC to declare broadband a telecommunications service, a legal category that would give the agency broader regulatory powers under the 1996 Telecommunications Act.
Reclassification has become controversial — some even describe it as a "nuclear option." But from the perspective of network neutrality advocates, reclassification is the only way to ensure the FCC will have the authority to enact strong rules protecting the open internet.
Why is reclassification so controversial?
Opponents fear that classifying broadband access as a telecommunications service will lead to excessive regulation of the internet. Telecommunications services are subject to a number of regulatory requirements that don't apply to information services. While the FCC can "forbear" from enforcing many of those requirements, the exact implications of reclassification are not fully known.
When Wheeler's predecessor, Julius Genachowski, considered the idea in 2010, he got an earful from some members of Congress. Incumbent broadband providers and their allies in Congress could make it more difficult for Wheeler to accomplish other items on his regulatory agenda if he reclassified.
What happens now?
The FCC is scheduled to vote on Wheeler's proposal on May 15. But Wheeler is facing growing pressure to delay that vote to give the commissioners more time to craft an alternative proposal.
That May 15 vote would be the first step in the rulemaking process. After that initial step, known as a notice of proposed rulemaking, the agency must accept comments from the public for several weeks. The FCC would then tweak the rule to take the public comments into account and adopt a final version of the rule. Only after that process was complete would the regulations be legally binding.
And depending on the rule the FCC adopts, that could be followed by years of litigation. After the FCC approved its last set of network neutrality rules in 2010, it took the courts more than 3 years to finally rule that the FCC had exceeded its authority.
