tom wheeler FCC Chairman
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FCC commissioners formally launched a process to establish rules of the road for the Internet, sending a proposal out for comment that already has triggered grassroots protest in fears that it will permit big media to gain advantage via faster delivery of content to consumers.

But FCC chairman Tom Wheeler stressed that the notice of proposed rulemaking was just the start of a lengthy process that could stretch into the rest of the year. The commission was not voting on the rules themselves, but whether to sent them out for public comment. The vote was 3-2.

“I will not allow the national asset of an open Internet to be compromised,” Wheeler said, during a meeting in which several protesters were removed as they called for robust protections for broadband.

Commissioner Jessica Rosenworcel voted for sending the proposal out for public comment, but she said that the process over the past few weeks was “flawed.” Commissioners Ajit Pai and Michael O’Rielly, Republican-designates on the commission, voted against it. Pai said that the FCC’s authority should be established first by Congress, while O’Rielly warned of regulation that would stifle innovation.

Outside the FCC, protesters gathered to “save the Internet,” reflecting the emotional response to what is perceived as any government effort that could undermine the ubiquity of a connection. A handful of picketers, called Occupy the FCC, have been camping out at the FCC for days, and several commissioners paid them a visit, including Wheeler, who spoke to them on Wednesday.

The controversy erupted after Wheeler outlined a proposal last month to revive the agency’s net neutrality rules after a federal appellate court struck down key aspects of the agency’s previous regulations.

Wheeler’s proposal would prohibit Internet providers from blocking content, by establishing that they must provide a “minimum level of access.” Where the FCC previously had a rule prohibiting ISPs from discriminating against certain types of traffic, the new proposal requires that Internet providers engage in “commercial reasonable” practices.

The latter proposal has triggered public Interest groups, Hollywood writers, and some lawmakers who believe that it will not be strong enough to prevent ISPs from selling “fast lanes” to content companies, diminishing those who do not pay to play. Since then, Wheeler has put revisions in the proposal to outline ways to define what is “commercially reasonable,” and asks for comment on whether “paid prioritization” should be banned outright. His revisions also proposes that an ISP that gives priority to “affiliated” content “should be considered illegal until proven otherwise.”

Wheeler vowed that he would seek robust rules. “If someone acts to divide the Internet into haves and have nots, we will use every power to stop it,” he said, echoing comments he made at the cable industry’s trade show several weeks ago.

“I will take a backseat to no one that privileging some network users in a manner that squeezes out smaller voices is unacceptable.”

Wheeler said that the FCC’s authority to impose such rules come from section 706 of the 1996 Telecommunications Act, which gives the commission the power to promote broadband adoption. The D.C. Circuit suggested such an approach for rewriting the rules when it struck down the FCC’s previous open Internet regulations.

The FCC will be asking for public input on whether the FCC should consider alternative approaches, including classifying the Internet as a common carrier service, akin to a utility, a regulatory maneuver that will give the FCC more authority over the Internet. Although Republicans on Capitol Hill have warned of such a move, along with dozens of broadband providers, net neutrality advocates contend that such a move would be a way of establish rules on solid legal footing.

Wheeler’s proposal also includes a rule requiring Internet providers to disclose their network management practices, and it also sets up a way to more efficiently resolve disputes, including the hiring of an ombudsman.

Net neutrality is the concept that Internet service providers should treat all types of traffic equally, and not block or degrade certain sites at the expense of others. (A primer here).

The FCC released a fact sheet outlining the proposals on Thursday. There will be 60 days or public comment, and another 60 days for responses.

Given the tide of comments to the FCC so far, it’s unlikely that the process will be smooth in the months ahead. Rosenworcel said that she thought that the commission was moving “too fast to be fair,” but she voted for the proposal, anxious that it include robust rules that prevent blocking and “unreasonable discrimination.” Pai expressed skepticism of the “newfangled tools the FCC will try to pull out of its legal grab-bag,” and that there was any “legal path for the FCC to prohibit paid prioritization.”

Update: Reaction just to the FCC’s decision to put the proposals up for review was swift.

Michael Copps, a former FCC commissioner now working for Common Cause, said that “today should have been about adopting strong safeguards, enforceable rules, and sound legal footings. It wasn’t. So it will take lots of citizens speaking out now to tell the FCC it is headed in the wrong direction.” He argued that the approach set out by Wheeler was still “porous metrics.” He called on the FCC to have hearings across the country. Sen. Al Franken (D-Minn.) warned that the FCC’s approach “could spell the beginning of the end of the Internet as we know it, plain and simple.”

On another side of the issue, Comcast executive vice president David L. Cohen, who said that while the company was “comfortable supporting appropriate, legally enforceable open Internet rules,” one of the alternatives, reclassifying broadband like a utility, would “spark massive instability, create investor and marketplace uncertainty, derail planned investments, slow broadband adoption and kill jobs in America.” Broadband industry executives have suggested that public interest groups are pushing the FCC toward reclassification as the only viable option. Wheeler said that he is “open” to such a move, a prospect that seemed a remote possibility just a few weeks ago.

At a press conference after the meeting, Wheeler suggested that the FCC would be soliciting comments via outreach outside the Beltway. And he defended his approach, saying that “nothing in this proposal authorizes fast lanes.” He said that it “asks questions about a fast lane,” pointing to queries on whether the FCC should ban such practices outright.

He did, however, cite instances where certain types of prioritization should be allowed, for such things as emergency services.

The FCC has posted the entirety of its proposal here.

 

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