The US’s Federal Communications Commission has followed the lead of President Barack Obama and voted to impose tough new rules for net neutrality, introducing a measure that seems sure to bring a court challenge.
The vote – as anticipated along a party-line 3-2 vote – backed Chairman Tom Wheeler’s proposal to reclassify broadband Internet as a ‘telecommunications service’, giving it greater legal powers to ban broadband providers from discriminating against any traffic passing through their networks.
In as Statement, Wheeler said that for over a decade, the Commission had endeavoured to protect and promote the open Internet. “FCC Chairs and Commissioners, Republican and Democrat alike, have embraced the importance of the open Internet, and the need to protect and promote that openness. Today is the culmination of that effort, as we adopt the strongest possible open Internet protections,” he declared.
“Last May, the Commission proposed a set of open Internet protections and, at the same time, asked an extensive series of questions about that proposal and about alternative approaches for protecting the open Internet. We asked about the benefits and drawbacks of different approaches, different rule formulations, and different legal theories. We asked the public to weigh in, and they responded like never before,” he advised.
“We heard from start-ups and world-leading tech companies. We heard from ISPs, large and small. We heard from public-interest groups and public-policy think tanks. We heard from Members of Congress, and, yes, the President. Most important, we heard from nearly four million Americans who overwhelmingly spoke up in favour of preserving a free and open Internet,” he reported.
“We listened. We learned. And we adjusted our approach based on the public record. In the process we saw a graphic example of why open and unfettered communications are essential to freedom of expression in the 21st Century,” he continued.
Wheeler said he was “incredibly proud” of the process the Commission had run in developing what he described as “historic” open Internet protections. “I say that not just as the head of this agency, but as a US citizen. Today’s Open Internet Order is a shining example of American democracy at work,” he proclaimed.
According to Wheeler, it should not be surprising the public engaged like never before, because the stakes of the debate before the Commission have never been higher. “Broadband networks are the most powerful and pervasive connectivity in history. Broadband is reshaping our economy and recasting the patterns of our lives. Every day, we rely on high-speed connectivity to do our jobs, access entertainment, keep up with the news, express our views, and stay in touch with friends and family. There are three simple keys to our broadband future. Broadband networks must be fast. Broadband networks must be fair. Broadband networks must be open,” he suggested.
“We know from the history of previous networks that both human nature and economic opportunism act to encourage network owners to become gatekeepers that prioritise their interests above the interests of their users. As the D.C. Circuit observed in the Verizon decision and as the public record affirms, broadband providers have both the economic incentive and the technological capability to abuse their gatekeeper position,” he noted.
“Our challenge is to achieve two equally important goals: ensure incentives for private investment in broadband infrastructure so the US. has world-leading networks and ensure that those networks are fast, fair, and open for all Americans. The Open Internet Order achieves those goals, giving consumers, innovators, and entrepreneurs the protections they deserve, while providing certainty for broadband providers and the online marketplace,” he advised, adding that the Order reclassified broadband Internet access as a ‘telecommunications service’ under Title II of the Communications Act while simultaneously foregoing utility-style, burdensome regulation that would harm investment.
“This modernised Title II will ensure the FCC can rely on the strongest legal foundation to preserve and protect an open Internet,” he affirmed, emphasising ‘modernised’. “We have heard endless repetition of the talking point that “Title II is old-style, 1930’s monopoly regulation. It’s a good sound bite, but it is misleading when used to describe the modernised version of Title II in this Order. Today’s Order will also use the significant powers in Section 706, not as a substitute but as a complement. This one-two punch applies both Title II, as well as Section 706, to protect broadband Internet access. It is the FCC using all of the tools in its toolbox to protect innovators and consumers,” he said.
Wheeler said that building on this strong legal foundation, the Open Internet Order will:
Ban Paid Prioritisation: ‘Fast lanes’ will not divide the Internet into ‘haves’ and ‘have-nots’.
Ban Blocking: Consumers must get what they pay for – unfettered access to any lawful content on the Internet.
Ban Throttling: Degrading access to legal content and services can have the same effect as blocking and will not be permitted.
“These enforceable, bright-line rules assure the rights of Internet users to go where they want, when they want, and the rights of innovators to introduce new products without asking anyone’s permission. The Order also includes a general conduct rule that can be used to stop new and novel threats to the Internet. That means there will be basic ground rules and a referee on the field to enforce them. If an action hurts consumers, competition, or innovation, the FCC will have the authority to throw the flag,” he advised.
“Under the Order we adopt today, open Internet protections would – for the first time – apply equally to both fixed and mobile networks. Mobile wireless networks account for 55 per cent of Internet usage. We cannot have two sets of Internet protections – one fixed and one mobile – when the difference is increasingly anachronistic to consumers,” he said.
Today’s Order also asserts jurisdiction over interconnection. The core principle is the Internet must remain open. We will protect this on the last mile and at the point of interconnection. We also ensure that network operators continue to have the incentives they need to invest in their networks. Let me be clear, the FCC will not impose ‘utility style’ regulation. We forbear from sections of Title II that pose a meaningful threat to network investment, and over 700 provisions of the FCC’s rules. That means no rate regulation, no filing of tariffs, and no network unbundling. During the 22 years that wireless voice has been regulated under a light-touch Title II like we propose today, there has never been concern about the ability of wireless companies to price competitively, flexibly, or quickly, or their ability to achieve a return on their investment,” he suggested.
“The American people reasonably expect and deserve an Internet that is fast, fair, and open. Today they get what they deserve: strong, enforceable rules that will ensure the Internet remains open, now and in the future,” he concluded.
Wheeler admitted following the FCC’s meeting November 21st that major cable and telecoms industry players were likely to sue the Commission whatever rules it proposed. “The big dogs are gonna sue regardless of what comes out. We want to come out with good rules that accomplish what we need to accomplish,” adding that the FCC wanted such rules to be in place after a court decision, “so we want to make sure that we’re thoughtful in the way we structure them, and thoughtful in the way we present what will ultimately be presented to a court.”