- Tom Wheeler, the chairman of the Federal Communications Commission, just announced new regulations that will provide strong protections for network neutrality.
- The proposal makes use of a controversial legal maneuver called reclassification, which opens the door to regulating internet access as a public utility.
- Most Republicans oppose reclassification, and they're working on legislation that would establish limited network neutrality rules without reclassifying.
- The FCC is expected to vote on the proposal on February 26.
The politics of network neutrality have shifted dramatically
Wheeler has now chosen a legal strategy that he saw as too radical just nine months ago. His original network neutrality proposal, which he released last May, tried to protect network neutrality, the idea that all internet content should be treated equally, without treating internet access as a public utility. Critics argued that these rules were too weak, leaving a big loophole that would allow broadband providers to engage in exactly the kind of discriminatory behavior that network neutrality rules are supposed to prevent.
Network neutrality advocates wanted to regulate broadband providers as public utilities, a step known to insiders as "reclassification." They mounted a successful lobbying campaign, submitting millions of comments to the agency urging a stronger stance. They gained an important ally in November when President Barack Obama endorsed reclassification.
The growing momentum for reclassification spooked Congressional Republicans and their allies in the telecom industry. They worry that reclassification could open the internet up to intrusive regulation in the future. In January, two key Republican leaders announced plans to draft legislation that would protect network neutrality but take reclassification off the table. But so far that proposal has gotten a cold reception from Democrats, who believe they can get what they want on the issue without GOP help.
Wheeler's proposal will apply to wired and wireless networks
Chairman Wheeler makes the case for strong net neutrality rules and explains his new proposal in a Wednesday op-ed for Wired.
"I am submitting to my colleagues the strongest open internet protections ever proposed by the FCC," Wheeler writes. "These enforceable, bright-line rules will ban paid prioritization, and the blocking and throttling of lawful content and services."
The 2010 FCC regulations the court struck down last year imposed stricter rules on wired networks than wireless one. In contrast, Wheeler plans to impose the same strict regulations on both types of networks.
Critics have warned that reclassification will lead to the imposition of outmoded regulations that were designed for old telephone networks. But Wheeler says that won't happen. "There will be no rate regulation, no tariffs, no last-mile unbundling," he writes. Last-mile unbundling refers to rules from the Clinton era that required telephone companies to "unbundle" their lines so that other companies could provide DSL service using them. These rules were largely abandoned under George W. Bush.
The significance of Wheeler's proposal will depend a lot on the details, and Wheeler's op-ed doesn't provide many. For example, some advocates have argued that companies violate network neutrality if they exempt certain types of content from customers' data caps. But Wheeler doesn't say if his rules would prohibit that. The FCC is expected to release more details on his proposal later this week.
What happens next?
The FCC has five commissioners, so Wheeler will need two votes, in addition to his own, to approve his proposal. Those votes will likely come from the other two Democrats on the commission, Mignon Clyburn and Jessica Rosenworcel.
Once the FCC approves the rules, several things could happen. First, companies and groups that dislike the regulation could sue to stop its enforcement. That's what happened after the FCC approved its last round of net neutrality regulations in 2010: Verizon sued, arguing the agency had exceeded its authority. Verizon eventually won its lawsuit. Reclassification is strongly opposed by telecom companies, so expect them to be ready with legal challenges.
At the same time, the FCC will probably face opposition from the Republican Congress. They'll likely grill Wheeler on his new proposal, and they may also try to pass legislation rejecting the new rules. However, it can be expected that such legislation would be vetoed by President Obama.
Finally, everything could change again if a Republican captures the White House in 2016. The new president will appoint a more conservative FCC chairman who could set to work reversing Wheeler's decisions.