In an op-ed published this morning, Federal Communications Commission (FCC) Chairman Tom Wheeler publicly announced that his agency will use Title II of the Communications Act to “implement and enforce open internet protections.”
Title II has long been the favored legal option of net neutrality allies. At the same time, using Title II as legal underpinning for open Internet rules is wildly unpopular among Internet service providers (ISPs). The Chairman’s choice will lead to legal challenge.
The FCC is widely expected to unveil its formal plan today, or tomorrow. A vote will take place on February 26.
The broad outlines of the Chairman’s plan, however, are already clear. In the op-ed, Wheeler notes that his rules will contain
enforceable, bright-line rules will ban paid prioritization, and the blocking and throttling of lawful content and services. I propose to fully apply—for the first time ever—those bright-line rules to mobile broadband.
The inclusion of wireless Internet services alongside wireline will kick up additional dust.
Wheeler also noted in his missive that he will cast off certain parts of Title II that he doesn’t feel are suited to regulating Internet access. More detail will certainly follow, but at a minimum, the Chairman notes that “there will be no rate regulation, no tariffs, [and] no last-mile unbundling” in the regulations.
Most interesting, however, in the Chairman’s comments, however, is his explanation of how his mind changed regarding what legal foundation net neutrality would be best supported by — the Chairman’s initial concept of using Section 706 of the Telecommunications Act of 1996, which caused some heartburn among open Internet advocates who worried that the FCC would lose in court, again, if it followed that path.
Originally, I believed that the FCC could assure internet openness through a determination of “commercial reasonableness” under Section 706 of the Telecommunications Act of 1996. While a recent court decision seemed to draw a roadmap for using this approach, I became concerned that this relatively new concept might, down the road, be interpreted to mean what is reasonable for commercial interests, not consumers.
In short, because the guiding rules would favor corporations, and not consumers, the Chairman decided that structure would not suffice.
In short, strict net neutrality regulations are coming, including wireless connections. If the rules will deal with interconnection agreements is not immediately clear. It’s game time, and Wheeler appears to be girded for war.