FCC Makes a Push for Net Neutrality

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By Adam Weber.

Net neutrality may have gotten its biggest boost yet this week, as FCC Chairman Tom Wheeler released his proposal for the most far-reaching open Internet rules this country has ever seen.  The proposed rules seek to ensure that broadband networks are freely available to anyone, and that larger companies cannot simply pay for faster Internet speeds.  This announcement comes as a major sign of relief to net neutrality advocates, who have been pushing for FCC action since the courts struck down previous Open Internet rules last year.

What is net neutrality?

Prior to HBO personality John Oliver’s satirical yet informative explanation of net neutrality, many Americans were unaware of this abstract concept.  To refresh, net neutrality represents a level Internet playing field, where Internet speeds are uniform regardless of the size of the company that created the data.  Essentially, these rules prevent larger broadband providers like Comcast and Verizon from charging companies for faster Internet speeds.  Without net neutrality rules in place, it would be possible for Internet giants like Netflix and Facebook to stifle the growth of budding companies and possible competitors by paying high premiums for access to “the fast lane” in Internet speeds.

In 2010, the FCC enacted the “Open Internet Order,” which established a set of rules regarding net neutrality.  The rules contained three main points.  First, broadband providers were required to be more transparent regarding their practices and contract terms.  Second, broadband providers were prohibited from blocking customers’ use of “lawful content.”  Finally, broadband providers would not be allowed to vary broadband speeds based on the source of the data, but they would be allowed to do so in order to reduce congestion on the network.  What the 2010 rules did not do was classify broadband as a Title II service under the Telecommunications Act of 1996.  That is, broadband providers were not subject to the same regulation as telecommunications services. Telecommunication services under Title II are considered public utilities and are much more heavily regulated by the FCC, as they act not only as information transmitters, but also as modes of communication.

Net neutrality struck down

Following the passage of the “Open Internet Order,” Verizon filed suit against the FCC on the grounds that Section 706 of the Telecommunications Act did not provide a suitable legal justification for the agency’s actions.  In January 2014, the D.C. Circuit Court of Appeals struck down a significant chunk of the FCC’s Open Internet Rules.  The court found that the FCC, under Section 706, had certain rulemaking authority regarding net neutrality, as it served to promote competition in the market for broadband services. However, this authority is limited due to the FCC’s classification of broadband as a Title I service, as opposed to Title II.  More specifically, the anti-blocking and anti-discrimination provisions were struck down because they only pertained to carriers classified under Title II.

A new approach      

In response to the court’s 2014 decision to strike down net neutrality, FCC Chairman Tom Wheeler has decided to approach the situation from a different angle of legal justification.  Remember, the D.C. Circuit Court of Appeals’ main concern with the “Open Internet Order” rules were that they applied to Title I services.  Wheeler’s proposal seeks to categorize broadband as a Title II service in order to circumvent the 2014 decision. Because the Internet is now widely considered a communication resource, not merely an information service, the FCC’s re-categorization has much more solid legal grounding.  The decision to move broadband from Title I to Title II broadens the scope of FCC authority, allowing it to resume its program of net neutrality.

The main components of the FCC’s new net neutrality program prohibit Internet providers from blocking or throttling legal websites or data. Additionally, companies will no longer be allowed to pay for faster broadband speeds, thereby creating a more level playing field.  Another important aspect of the FCC’s new rules is the expansion of net neutrality into mobile broadband data, which was previously only partially protected.  The move toward mobile has been more than evident in the present digital age, and the FCC has responded to that trend by placing mobile broadband services into the Title II group.  One distinction that the FCC has made between broadband services and telephone lines involves the regulation of rates.  Wheeler’s proposal continues to allow broadband providers to charge Internet users what they like without government interference.

The net neutrality debate is far from over.  The recent announcement merely reflects Wheeler’s proposal, and formal rule-making proceedings must follow.  Furthermore, major providers are likely to question the legal footing of the FCC’s new classification of broadband under Title II.  The legal prowess and lobbying power of major Internet providers like Comcast and Verizon cannot be overstated, as they will seek to continue to profit as much as possible from the Internet.  For the time being, however, net neutrality advocates should celebrate this victory, as it is undoubtedly a major step in the push for a free and open Internet.

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