FCC Chairman Suggests Move Toward Title II in Feb. 26 Net Neutrality Vote

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FCC chairman Tom Wheeler said Wednesday that the commission will vote on a new net neutrality proposal on Feb. 26, with the new rules of the road for the Internet having been circulated to other commissioners earlier in the month.

He declined to outline what the proposal will be in a Q&A session at the Consumer Electronics Show in Las Vegas.

There has been growing speculation on Wall Street and elsewhere that he will undertake an effort to reclassify the broadband Internet as a Title II telecommunications service. At the Q&A with Consumer Electronics Assn. CEO Gary Shapiro, Wheeler all but said that they were moving toward reclassification, but with provisions prohibiting the FCC from imposing more onerous regulations that apply to utilities.

“That is the path we are going,” said Wheeler, noting that the wireless industry has been classified as Title II for 20 years yet has still seen a surge of growth and investment in that time period.

Nevertheless, such a regulatory move is fervently opposed by Internet service providers like Comcast and AT&T, along with many Republicans on Capitol Hill.

Yet that approach gained momentum in November when President Obama announced his support for reclassification, which is also supported by public interest groups and many Internet companies as necessary to give the FCC the legal footing to enforce strong rules banning discrimination against certain types of Web traffic and paid prioritization of content.

The challenge for Wheeler has been to write rules that have teeth yet can survive a court challenge. His initial proposal, which would have allowed for paid prioritization if it was “commercially reasonable,” was met with fierce opposition from public interest groups, who protested in front of FCC headquarters in Washington. The FCC has received more than 3.7 million comments on net neutrality, a record for a policymaking proceeding.

Also on Wednesday, Sen. Patrick Leahy (D-Vt.) and Rep. Doris Matsui (D-Calif.) introduced legislation that would allow the FCC to ban paid prioritization and discrimination using their existing authority. But the legislation’s chances of getting very far are doubtful given the Republican control of Congress.

Internet service providers have warned that reclassification — essentially giving the FCC the same oversight that it has over phone service — would stifle innovation because of the myriad of regulations that would come with it. But Wheeler suggested that such an approach would limit the FCC’s oversight to make sure that Internet providers engage in “just and reasonable” handling of their traffic, and that there is consumer protection.

“So there is a way to do Title II right that says that there are many parts of Title II that are inappropriate and that would thwart investment, but that a model has been set in the wireless business,” he said.

Former FCC chairman Robert McDowell, who voted against a previous set of FCC net neutrality rules, on Wednesday tweeted that the legal analysis for such an approach was “flawed.”