Net Neutrality Wins: The FCC will propose strong Title II regulation

'The Internet must be fast, fair, and open.' The biggest revelation from the proposal is the decision to lump wireless networks in with wired broadband, something the FCC has avoided doing for years thanks to enormous pressure from Verizon and AT&T.
T.C. Sottek
February 4, 2015
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Today, in a statement given to Wired, FCC Chairman Tom Wheeler revealed his plan to reclassify ISPs as common carriers under Title II of the Telecommunications Act. It's a striking victory for net neutrality advocates who have been fighting for years to solidify internet protections using Title II authority - and it's the first time the FCC has shown enough backbone to draw a line in the sand against companies like Comcast, AT&T, and Verizon, who are sure to fight viciously in courts to reverse this action.

"I am submitting to my colleagues the strongest open internet protections ever proposed by the FCC," Wheeler wrote. "These enforceable, bright-line rules will ban paid prioritization, and the blocking and throttling of lawful content and services."

My proposal assures the rights of internet users to go where they want, when they want.

The biggest revelation from the proposal is the decision to lump wireless networks in with wired broadband, something the FCC has avoided doing for years thanks to enormous pressure from Verizon and AT&T. "I propose to fully apply - for the first time ever - those bright-line rules to mobile broadband," Wheeler wrote. "My proposal assures 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." Including wireless providers in the rules is a hugely important move, since we've seen that the biggest players have been willing and able to abuse internet openness. AT&T once blocked FaceTime for completely arbitrary reasons, and most recently, T-Mobile has disregarded the principles of net neutrality by giving some music companies special exemptions from data caps.

Wheeler specifically calls out AT&T in his statement as justification for the kind of regulation the FCC now seeks, noting that the internet as we know it wouldn't exist if the commission had not established open access rules in the 1960s. "Before then, AT&T prohibited anyone from attaching non-AT&T equipment to the network," Wheeler wrote:

The modems that enabled the internet were usable only because the FCC required the network to be open.

The FCC has tried to establish rules for net neutrality for more than a decade. In 2002, instead of using the strong authority granted under Title II of the revised Telecommunications Act, the FCC caved to the ISPs and instead classified them as Title I "information service providers." Then, the FCC tried to regulate ISPs like Title II common carriers anyway, forcing federal courts to side with ISPs who accused the FCC of going beyond its authority.

But even though the FCC has been shot down in court for shoehorning open internet rules under Title I, the government has shown sympathy for net neutrality regulation; the judge in the Verizon case noted that "broadband providers represent a threat to internet openness." With the death of net neutrality in that ruling, it also appeared the FCC would be a threat to internet openness. As it began to consider a new plan after its defeat, Wheeler suggested last year that the commission would consider allowing ISPs to sell "fast lanes." But after a huge public outcry that included a total of 3.7 million comments sent to the FCC on net neutrality, the commission is set to seek stronger protections.

The chairman's proposal was expected to be circulated to commissioners tomorrow, but Wheeler got ahead of it today by detailing his plan. "After more than a decade of debate and a record-setting proceeding that attracted nearly 4 million public comments," Wheeler wrote, "the time to settle the net neutrality question has arrived."

The proposal still needs to be voted on by the FCC on February 26th, but with only two Republican opponents on the five member commission it faces no serious threat of failure internally. Congress, on the other hand, may attempt to undermine the FCC's authority with legislation.

There's also still a lot of important information we don't have yet about how Title II will be implemented, though the proposal is still likely to be leaked soon. When it does, we'll find out exactly how the FCC plans to "modernize" use of the authority, including which provisions it will forbear - a necessary step to make sure ISPs aren't saddled with rules that make no sense for the internet.

So that's it. After more than a decade of using the wrong words to protect net neutrality, the FCC is using the right ones. And with the telecommunications giants already revealing their legal strategy to fight it, former FCC Chairman Michael Powell's warning that reclassification would result in "World War III" is looking prescient. A new battle begins.

February 5, 2015