The Internet regulations are almost certain to end up in federal court, one reason the agency may be opening up its notice of proposed rulemaking for an extended public comment period of four months.

May 15, 2014

3 Min Read
AT&T, Consumer Groups React to FCC's Latest Net Neutrality Proposal

By Josh Long

The Federal Communications Commission on Thursday voted three to two to propose Net neutrality rules, a third attempt to regulate the Internet after previous attempts were foiled by the courts.

Under the proposal spearheaded by FCC Chairman Tom Wheeler, broadband providers would be required to disclose their network-management practices to consumers, and fixed high-speed carriers like Comcast, AT&T and Verizon would be forbidden from blocking lawful content, applications, services, or non-harmful devices.

The FCC also has proposed barring fixed broadband providers from engaging in “commercially unreasonable practices,” a term that is likely to be vigorously debated in the coming months. The Internet regulations are almost certain to end up in federal court, one reason the agency may be opening up its notice of proposed rulemaking for an extended public comment period of four months.

“What we are dealing with today is a proposal, not a final rule,” Wheeler cautioned. “With this notice we are specifically asking for input on different approaches to accomplish the same goal: an open Internet.”

In the notice, the FCC asked whether it should ban agreements in which content providers like Amazon and Netflix could pay a premium for faster priority to Internet lanes, a controversial practice that consumer advocates staunchly oppose.

Although FCC Commissioner Jessica Rosenworcel sided with Wheeler on the proposal, she expressed her preference that the agency would have delayed a vote. She cited “the great tide of public commentary that followed in the wake” of Wheeler’s initial proposal, which he modified in response to widespread criticism. His initial proposal was said to have contemplated authorizing pay-for-priority deals, which critics worried would create slow and fast lanes on the Internet and frustrate access to content.  

The changes didn’t go far enough to appease some organizations, such as the progressive group CREDO, which launched a petition urging President Obama to save the Internet. 

“President Obama: Tom Wheeler, the FCC Chair you appointed, has proposed rules that would kill the free and open Internet,” the petition declares. “Don’t sit on the sidelines and allow this to happen. You have promised to support Net Neutrality, now it’s time for you to keep your word.”

Others in the GOP believe the proposal will unnecessarily hamstring the market.

The two Republicans on the FCC, Ajit Pai and Michael O’Rielly, voted against Wheeler’s notice of proposed rulemaking.

Congress is better suited than the FCC to handle a disagreement over how to regulate the Internet, argued Pai, who declared “the legal consequences of moving forward with Net neutrality regulation are sure to wreak havoc on the Internet economy, no matter what legal path we take.”

The FCC’s previous Internet regulations have been overturned by an appeals court, mostly recently in January after a panel of judges ruled the agency was seeking to unlawfully subject broadband providers to “common carrier” regulations. In reliance on guidance from the U.S. Court of Appeals in Washington, D.C., the agency is hoping the current proposal, if finalized, will survive a legal challenge based on its authority under the Telecommunications Act of 1996. 

But the FCC also is exploring invoking its legal authority under Title II of the Communications Act. O’Rielly argued that would be a mistake for the FCC to apply “monopoly era telephone rules to modern broadband services solely to impose unnecessary and defective Net neutrality regulations.”

AT&T expressed a similar view, warning about the consequences of treating the Internet like a utility.

“Utility regulation would strangle investment, hobble innovation, and put government regulators in charge of nearly every aspect of Internet-based services,” said Jim Cicconi, AT&T senior executive vice president of external and legislative affairs. “Such an approach would also send an alarming message to the rest of the world — a message that says the United States believes it is appropriate for governments to place onerous regulations on the Internet,” he added.

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