FCCs Wheeler Unveils Proposal to Protect Internet

Josh LongFCC Chairman Tom Wheeler on Wednesday unveiled his proposal to regulate the Internet, an approach that is intended to protect Americans’ unfettered access to one of the 20th Century’s greatest inventions.

The proposal, which will be circulated to the four other commissioners on Thursday, would ban the blocking or slowing down of Internet traffic, and broadband providers would be prevented from giving certain traffic priority over other lanes. The draft regulations also would make explicit that the FCC has authority to investigate complaints between broadband providers and so-called edge providers like Amazon and Netflix over interconnection issues, and take enforcement action if necessary.

The prohibitions on blocking, throttling and paid prioritization include an exception that would allow a broadband provider to engage in “reasonable network management.” Broadband providers could invoke the exception for the purpose of managing the engineering and technical aspects of a network.

In an op-ed published Wednesday by WIRED, Wheeler characterized his Net neutrality proposal as “the strongest open Internet protections ever proposed by the FCC.”

For the first time ever, the restrictions would apply to wireless broadband providers, an acknowledgement that consumers are increasing relying on wireless networks to access the Internet.

Wheeler, a former managing partner at a venture capital firm, intends to reclassify retail broadband service as a telecommunications service that would be subject to Title II of the Communications Act of 1934. That is the approach favored by President Barack Obama and opposed by some of the nation’s largest broadband providers.

Wheeler’s proposal may reflect a middle-of-the-road approach. He proposed the FCC utilize its forbearance authority to refrain from applying a number of Title II provisions, including rate regulation and so-called unbundling or sharing of the last-mile network. During a press conference, FCC officials characterized Wheeler’s proposal as a light-touch approach to regulating the Internet that would continue to encourage investment and innovation.

“Over the last 21 years, the wireless industry has invested almost $300 billion under similar rules, proving that modernized Title II regulation can encourage investment and competition,” Wheeler wrote for WIRED.

Others are more skeptical. Subjecting the Internet to Title II regulation is an unnecessary and onerous approach that is reminiscent of a monopoly era and would fail to withstand a legal challenge, Title II critics have contended.

“Heavily regulating the Internet for the first time is unnecessary and counterproductive,” declared Michael E. Glover, Verizon senior vice president and deputy general counsel, public policy and government affairs, in a blog Wednesday. “It is unnecessary because all participants in the Internet ecosystem support an open Internet, and the FCC can address any harmful behavior without taking this radical step.”

In January 2014, a federal appeals court in Washington, D.C., largely struck down Internet regulations that were adopted in 2010. The panel of judges recognized the FCC had authority to regulate the Internet but made it clear the agency went about it the wrong way.

The court left in place a transparency rule that is currently in effect. It requires broadband providers make certain disclosures about their network practices, performance and commercial terms. Wheeler has proposed modifications to that rule.

An FCC official expressed confidence that Wheeler’s proposal puts the agency on solid legal footing under numerous provisions of federal law, including Title II and Section 706 of the Telecommunications Act of 1996.

The five-member Commission intends to vote on Wheeler’s proposal on Feb. 26. If adopted, litigation is all but certain.

Congress also could foil the FCC’s plans. Last month, Republicans proposed draft legislation that would prevent broadband providers from blocking lawful content, but the FCC would be preempted from regulating the Internet under Title II.

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