FCC approves ‘Open Internet’ plan
May 16, 2014
By Colin Mann
The US Federal Communications Commission has voted in favour of progressing a proposal that could see Internet Service Providers charging Web sites for higher-quality delivery of their content to American consumers.
The FCC will now open the proposal to a total 120 days of public comment. Final rules, aimed for the end of the year, could be rewritten after the agency reviews the public comments.
Critics of the plan suggest it would mark the end of net neutrality, the principle that says that all content online should be treated equally by Internet Service Providers.
The Notice of Proposed Rulemaking adopted by the FCC poses a broad range of questions to elicit the broadest range of input from everyone impacted by the Internet, from consumers and small businesses to providers and start-ups.
The FCC has previously concluded that broadband providers have the incentive and ability to act in ways that threaten Internet openness. But today, there are no rules that stop broadband providers from trying to limit Internet openness. That is why the Notice adopted by the FCC starts with a fundamental question: “What is the right public policy to ensure that the Internet remains open?”
The FCC proposes to rely on a legal blueprint set out by the United States Court of Appeals for the District of Columbia Circuit in its January decision in Verizon v. FCC, using the FCC’s authority to promote broadband deployment to all Americans under Section 706 of the Telecommunications Act of 1996. At the same time, the Commission will seriously consider using its authority under the telecommunications regulation found in Title II of the Communications Act. In addition, the Notice:
- Proposes to retain the definitions and scope of the 2010 rules, which governed broadband Internet access service providers, but not services like enterprise services, Internet traffic exchange and specialised services.
- Proposes to enhance the existing transparency rule, which was upheld by the D.C. Circuit. The proposed enhancements would provide consumers, edge providers, and the Commission with tailored disclosures, including information on the nature of congestion that impacts consumers’ use of online services and timely notice of new practices.
- As part of the revived ‘no-blocking’ rule, proposes ensuring that all who use the Internet can enjoy robust, fast and dynamic Internet access.
- Tentatively concludes that priority service offered exclusively by a broadband provider to an affiliate should be considered illegal until proven otherwise.
- Asks how to devise a rigorous, multi-factor ‘screen’ to analyse whether any conduct hurts consumers, competition, free expression and civic engagement, and other criteria under a legal standard termed ‘commercial reasonableness;.
- Asks a series of detailed questions about what legal authority provides the most effective means of keeping the Internet open: Section 706 or Title II.
- Proposes a multi-faceted process to promptly resolve and head off disputes, including an ombudsperson to act as a watchdog on behalf of consumers and start-ups and small businesses.
In a statement, FCC Chairman Tom Wheeler said he strongly supported an open, fast and robust Internet. “This agency supports an Open Internet. There is ONE Internet. Not a fast Internet, not a slow Internet; ONE Internet. The attention being paid to this topic is proof of why the open and free exchange of information must be protected.”
He said the 3-2 vote was another step in what had been a decade-long effort to preserve and protect the Open Internet. “Unfortunately, those previous efforts were blocked twice by court challenges by those who sell Internet connections to consumers. Today this agency moves to surmount that opposition and to stand up for consumers and the Open Internet,” he declared.
He said he would not allow the national asset of an Open Internet to be compromised. “I understand this issue in my bones. I can show you the scars from when my companies were denied open access in the pre-Internet days. The consideration we are beginning today is not about whether the Internet must be open, but about how and when we will have rules in place to assure an Open Internet. My preference has been to follow the roadmap laid out by the D.C. Circuit in the belief that it was the fastest and best way to get protections in place.”