FCC plans new basis for old network neutrality rules

The goal is to provide a legal rationale that does not ban certain activities, but Republicans on the commission are skeptical.

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FCC Commissioner Tom Wheeler

The Federal Communications Commission is going to have another go at crafting the open Internet rules that were issued in 2010 and struck down by a federal court in January.

Although the new rules would have the same goal of preventing wireline broadband providers from discriminating among services that operate over their networks, the legal justification for the new rules will be tailored to meet certain constraints in the D.C. circuit court's decision in Verizon v. FCC.

Rather than appeal that ruling, the FCC is declaring victory, arguing that the decision backs up the agency's claim to authority under the Telecommunications Act of 1996 to write rules "encouraging the deployment of broadband infrastructure."

In a statement announcing the new policy direction, FCC Commissioner Tom Wheeler said, "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."

A senior FCC official who briefed reporters on Wheeler's plans said the rules, which have yet to be written, will be the subject of a proceeding in late spring or early summer. The rules will include essentially the same goals of the original open Internet order: to prevent broadband carriers from blocking Internet traffic or discriminating against providers that offer services that compete with the carrier's own products -- for instance, making sure a cable company doesn't put Netflix in a slow traffic lane while boosting its own video offerings.

The FCC also plans to rewrite the transparency rule, which requires broadband carriers to share information on how they manage Internet traffic. Transparency rules could be crafted to include minimum service requirements in terms of broadband speed, the FCC official said.

The official added that the goal for rewriting the rules is to provide a legal rationale that does not ban certain activities but instead offers guidance for adjudication on a case-by-case basis when conflicts arise. He said the FCC's rules on data roaming, under which carriers are required to set "commercially reasonable" rates for allowing mobile traffic to run on their networks, could be a model for structuring open Internet rules.

Additionally, Wheeler announced that a proceeding that explores the regulation of broadband as a common carrier would remain open. Reclassification as a Title II communications service would subject broadband providers to the same set of rules that govern phone companies -- with the mandatory interconnection of networks and outright bans on traffic discrimination -- and would be far stricter than the open Internet rulebook. Such a move is ardently opposed by broadband providers.

Republican members of the FCC were not convinced that a reprise of the 2010 order would bring a new result.

"In the wake of a court defeat, an FCC chairman floats a plan for rules regulating Internet service providers' network management practices instead of seeking guidance from Congress, all while the specter of Title II reclassification hovers ominously in the background," Commissioner Ajit Pai said. "I am skeptical that this effort will end any differently from the last."

On a related track, the FCC plans to explore whether it can circumvent state laws that prohibit cities and towns from offering municipal broadband services. At least 19 states maintain some restrictions on municipal broadband, ranging from outright bans to permitting it under certain conditions -- for example, in the event that a local provider can't offer high-speed services or if the service is requested by voters in a referendum.

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