As the FCC prepares for a key meeting on Thursday, its chairman Tom Wheeler is making revisions to his proposal to re-establish rules of the road for the Internet, including language to make it more difficult for broadband providers to prioritize some traffic over others.
Ever since Wheeler outlined his plans for net neutrality last month, there has been a storm of criticism over his proposed rules, primarily because they would allow for ISPs to charge content companies for speedier delivery to their subscribers, in what critics say would devolve into fast and slow lanes on the Internet.
Wheeler’s revisions, according to a source at the commission, include provisions for more explicit scrutiny of paid prioritization deals, including that such arrangements don’t relegate non-paying, rival content into slow lanes. It also will ask for input on whether paid prioritization should be banned outright. And it also seeks comments on whether the FCC should reclassify the Internet as a public utility, rather than an information service — a step that would give the agency greater regulatory reach.
Wheeler’s original outline for open Internet rules, unveiled last month, allowed for paid prioritization as long as it was “commercially reasonable.” Public interest groups said that such language watered down net neutrality, or the concept that Internet providers should treat all legal content equally in how it is delivered to consumers.
While groups like the Writers Guild of America have warned that such a “commercially reasonable” would ultimately advantage big media, the opposition seemed to gain particular momentum last week when some 150 tech firms, including Google, Netflix and Amazon, sent a letter to Wheeler objecting to rules that would allow for such prioritization of traffic.
The agency has received more than 100,000 comments since then, the majority opposed to such a proposal, and the backlash has raised the prospect that the agency is facing a protest akin to that which sidelined an effort by Congress to pass anti-piracy legislation, the Stop Online Piracy Act, in 2012.
The FCC is scheduled to vote on Thursday on whether to move forward with the proposal by putting it out for formal public comment.
In 2010 the FCC approved a set of rules that included a provision prohibiting Internet providers from “unreasonable discrimination” in how they deliver Internet content. But after Verizon challenged the rules, the D.C. Circuit struck down that provision, saying the FCC lacked authority to impose it, sending Wheeler and his staff searching for a new route that could survive legal scrutiny.
Wheeler’s proposal is rooted in the authority that Congress gave the FCC in the 1996 Telecommunications Act to promote broadband adoption. But there are some doubts whether such an approach would still survive a court challenge, especially as provisions are added to more explicitly prohibit paid prioritization.
Instead, figures like Tim Wu, professor at Columbia Law School, have written that Wheeler should try to pass tough rules with reclassification as a public utility “as a backup.” Mozilla has proposed that the FCC establish its authority by designating a particular aspect of the delivery of Internet content with such a regulatory reach.
Wheeler needs two other votes for the proposal to move forward, and doubts emerged last week as to whether he would have that support. Ajit Pai and Michael O’Reilly, the Republican designates on the commission, have opposed net neutrality rules, with Pai calling them a “solution in search of a problem.” In a speech last week, one of Wheeler’s fellow Democrats, Jessica Rosenworcel, called for the vote to be delayed, while Mignon Clyburn reiterated her support for rules that prohibit paid prioritization.
In advance of the meeting, one of Wheeler’s advisers, Gigi Sohn, who advocated for strong net neutrality rules when she led public interest group Public Knowledge, will hold a Twitter chat.