FCC votes for net neutrality, a ban on paid fast lanes, and Title II

FCC votes for net neutrality, a ban on paid fast lanes, and Title II
Internet providers are now common carriers, and they’re ready to sue.
By Jon Brodkin
Feb 26 2015
<http://arstechnica.com/business/2015/02/fcc-votes-for-net-neutrality-a-ban-on-paid-fast-lanes-and-title-ii/>

The Federal Communications Commission today voted to enforce net neutrality rules that prevent Internet providers—including cellular carriers—from blocking or throttling traffic or giving priority to Web services in exchange for payment.

The most controversial part of the FCC’s decision reclassifies fixed and mobile broadband as a telecommunications service, with providers to be regulated as common carriers under Title II of the Communications Act. This decision brings Internet service under the same type of regulatory regime faced by wireline telephone service and mobile voice, though the FCC is forbearing from stricter utility-style rules that it could also apply under Title II.

The decision comes after a year of intense public interest, with the FCC receiving four million public comments from companies, trade associations, advocacy groups, and individuals. President Obama weighed in as well, asking the FCC to adopt the rules using Title II as the legal underpinning. The vote was 3-2, with Democrats voting in favor and Republicans against.

Chairman Tom Wheeler said that broadband providers have the technical ability and financial incentive to impose restrictions on the Internet. Wheeler said further:

The Internet is the most powerful and pervasive platform on the planet. It is simply too important to be left without rules and without a referee on the field. Think about it. The Internet has replaced the functions of the telephone and the post office. The Internet has redefined commerce, and as the outpouring from four million Americans has demonstrated, the Internet is the ultimate vehicle for free expression. The Internet is simply too important to allow broadband providers to be the ones making the rules.

This proposal has been described by one opponent as “a secret plan to regulate the Internet.” Nonsense. This is no more a plan to regulate the Internet than the First Amendment is a plan to regulate free speech. They both stand for the same concepts: openness, expression, and an absence of gate keepers telling people what they can do, where they can go, and what they can think.

Wheeler also said putting rules in place will give network operators the certainty they need to keep investing.

Commissioner Mignon Clyburn, the longest-tenured commissioner and someone who supported Title II five years ago, said the net neutrality order does not address only theoretical harms.

“This is more than a theoretical exercise,” she said. “Providers here in the United States have, in fact, blocked applications on mobile devices, which not only hampers free expression, it also restricts innovation by allowing companies, not the consumer, to pick winners and losers.”

Clyburn convinced Chairman Tom Wheeler to remove language that she believed was problematic.

“We worked closely with the chairman’s office to strike an appropriate balance and, yes, it is true that significant changes were made at my office’s request, including the elimination of the sender side classification, but I firmly believe that these edits have strengthened this item,” she said.

Clyburn, Google, and consumer advocacy groups told Wheeler that language classifying a business relationship between ISPs and Web services as a common carrier service could give ISPs grounds to charge online content providers for access to their networks. This language was apparently removed, but service that ISPs offer to home and business Internet users was still reclassified as a common carrier service. FCC officials believe this classification alone gives them power to enforce net neutrality rules and oversee network interconnection disputes that affect consumers.

Internet service providers such as Comcast, AT&T, and Verizon lobbied heavily against the Title II decision and could sue to overturn the rules. But Wheeler believes Title II puts the FCC on stronger legal ground. The FCC previously passed net neutrality rules in 2010, relying on some of its weaker authority, but the rules were largely overturned after a Verizon lawsuit.

By winning that case, Verizon inadvertently opened itself and all other Internet providers up to even stricter rules. The new rules go beyond the net neutrality rules passed in 2010. And this time around, the FCC is applying the rules equally to fixed and mobile broadband, whereas its 2010 rules went easier on Verizon’s wireless subsidiary and other cellular companies.

The core net neutrality provisions are bans on blocking and throttling traffic, a ban on paid prioritization, and a requirement to disclose network management practices. Broadband providers will not be allowed to block or degrade access to legal content, applications, services, and non-harmful devices or favor some traffic over others in exchange for payment. There are exceptions for “reasonable network management” and certain data services that don’t use the “public Internet.” Those include heart monitoring services and the Voice over Internet Protocol services offered by home Internet providers.

The reasonable network management exception applies to blocking and throttling but not paid prioritization.

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