FCC’s re-write of Net Neutrality rules will likely come up short
There’s good news on the Net Neutrality front, and then there’s not-so-good news. First, the good news: On Wednesday, February 19, the Federal communications Commission (FCC) announced it would not challenge the Federal Court’s ruling that vacated the FCC’s 2010 Open Internet rules and would instead rewrite its rules.
The FCC’s Open Internet Order essentially prevented Internet service providers (ISPs) from blocking traffic and discriminating against (such as slowing or throttling) traffic generated by, say, companies that offer competing services, and they demanded transparency about how the traffic is handled. While the Open Internet Order appeared to protect Net Neutrality in principal, its failure was assured in 2002 when the FCC reclassified its authority over broadband as Title I, meaning an “information service.” Prior to 2002, broadband was classified as Title II, “common carrier,” like a utility. Since U.S. government research established the Internet and our economy and global competitiveness relies on it, there’s little doubt broadband is a utility except to those who believe that corporations would not interfere with an open Internet. (If that’s truly the case, why would the Open Internet Order have been challenged in the first place?) But the FCC put Net Neutrality on shaky ground when it made broadband a mere information service and left it vulnerable to a court battle, and it was a only a matter of time until last month’s ruling inevitably happened.
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In its opinion on Verizon v FCC, the U.S. District Court of Appeals for the District of Columbia said the FCC could rewrite Net Neutrality rules that are more compliant with the law, and FCC chairman, Tom Wheeler said the agency will indeed follow that suggestion. What Wheeler didn’t say was that he would reclassify broadband under Title II — that's the not-so-good news. Instead, we got pledges and predictable talk about keeping the Internet open to innovation, and that the public can comment on the rules, and on and on, with new rules to come by mid-year — anything but a pledge to reclassify broadband as common carrier, which of course would give broadband utility status and leave no doubt about the FCC’s authority to keep the Internet open.
The lack of outrage from the telecoms after Wheeler’s statement would suggest that they seem confident that without reclassification, they’ll still get what they want — a gated Internet — after the FCC kicks the Net Neutrality can down the road a bit further. Meanwhile, the FCC is missing the chance to remove any doubt that the road will not be lined with tolls.