Federal Communications Commission's (FCC) chairman Tom Wheeler is moving ahead with a new version of rules promoting net neutrality, despite last month's decision by a federal appeals court to strike them down.
The US Court of Appeals for the District of Columbia Circuit didn't agree with FCC's legal reasoning, and said the FCC doesn't have the authority to carry out rules preventing broadband providers from selectively blocking or slowing websites and services. The D.C. Circuit court rejected Verizon's claim that the FCC lacks jurisdiction over broadband providers, but also prohibited an attempt by the FCC to regulate the company under common carrier rules, which are typically used for phone companies. The FCC had elected to exempt broadband providers from common carrier rules, and therefore, could not treat them as such.
A petition on We the People, a White House petition website, urged president Obama to allow the FCC to reclassify Internet service providers as common carriers. Federal chief technology officer Todd Park and director of the National Economic Council Gene Sperling posted a response to the petition on the White House blog in support of net neutrality. However, they said the president would not get involved because the FCC is considered an independent agency.
[Why one CIO believes competition, not regulation, is the best way to make the Internet open: Net Neutrality Court Ruling Won't Ruin The Internet.]
The FCC does have some authority to regulate broadband services, according to the January court ruling. Wheeler released a statement on February 19, saying the FCC is seeking public input for an updated set of rules for an open Internet. Instead of appealing the court decision in the Verizon v. FCC case, the commission plans to reintroduce the rules under its legal authority.
The D.C. Circuit ruled that the FCC has the legal authority to issue enforceable rules of the road to preserve Internet freedom and openness. I intend to accept that invitation by proposing rules that will meet the court's test for preventing improper blocking of and discrimination among Internet traffic, ensuring genuine transparency in how Internet service providers manage traffic, and enhancing competition.
Wheeler outlined the next steps for ensuring that the Internet "remains a platform for innovation, economic growth, and free expression." He said fellow commissioners must enforce and enhance the transparency rule, which requires that network operators disclose how they manage Internet traffic.
The same goes for "no blocking," a rule for which the FCC hasn't provided a sufficient legal foundation, according to the D.C. Circuit court. "We will carefully consider how, consistent with the court opinion, we can ensure that edge providers are not unfairly blocked, explicitly or implicitly, from reaching consumers, as well as ensuring that consumers can continue to access any lawful content and services they choose," Wheeler said.
Last, the FCC will use its authority to regulate the Internet under Section 706 of the Telecommunications Act of 1996 to "fulfill the goals of the non-discrimination rule," said Wheeler. This includes setting an enforceable standard for edge providers, consumers, and broadband providers, as well as identifying behaviors by broadband providers that the commission might find skeptical.
The updated net neutrality rules are likely to be completed by late spring or early summer. In the meantime, Wheeler said the FCC will hold Internet service providers to their promise to honor the safeguards outlined in the 2010 Open Internet Order, which aims to preserve an open and well-functioning Internet.
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