In an opinion piece for Wired, Wheeler explained that his new draft rules will rely on the authority in Title II of the Communications Act to reclassify ISPs as common carriers. The move ensures the Internet remains an open platform to all users. The regulations apply to both wired and wireless providers.
The plan is being circulated among FCC commissioners this week. It must be approved by a majority of the five-member FCC, which is scheduled to vote on it at a public hearing on Thursday, Feb. 26.
Wheeler’s stance is a reversal of sorts. He originally said the FCC could assure Internet openness through a determination of “commercial reasonableness” under Section 706 of the Telecommunications Act of 1996. But concern that the approach could be wrongly interpreted prompted Wheeler to shift his thinking to a Title II authority argument.
“These enforceable, bright-line rules will ban paid prioritization, and the blocking and throttling of lawful content and services,” Wheeler wrote in Wired. “I propose to fully apply -- for the first time ever -- those bright-line rules to mobile broadband. 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.”
Proponents of open Internet rules applauded Wheeler’s announcement, calling it a victory for consumers. Critics charged the proposal would trigger a series of negative consequences.
Chris Mitchell, director of Community Broadband Networks for the Institute for Local Self-Reliance, praised the move and noted that Wheeler grounded his announcement with an explanation of how telecommunications regulation has evolved over the decades.
“The chairman was wise to root his decision in history rhetorically,” Mitchell said. “Smart government policy has been an essential ingredient in the open Internet of today. For the Internet to thrive, we need to recognize both public and private interests in a balancing act.”
Others releasing statements of support for Wheeler’s approach included:
Sen. Brian Schatz, D-Hawaii:
“I am pleased that the chairman’s proposal bans blocking, throttling, and paid prioritization for both mobile and fixed broadband providers. I believe that these new proposed rules provide clear regulatory guidance for industry while at the same time, preserving the FCC’s authority to prevent other forms of discrimination that threaten Internet openness in the future.”
Sarah Morris, senior policy counsel for New America’s Open Technology Institute:
“The chairman’s plan to reclassify broadband as a Title II service is a tremendous win for consumers. Title II gives the FCC clear, bounded legal authority to implement strong network neutrality rules and the ability to continue to assess and address harms as they arise.”
Not everyone is pleased with Wheeler’s decision, however. Doug Brake, telecommunications policy analyst at the Information Technology and Innovation Foundation (ITIF), criticized the Title II regulatory approach, calling it a “strong shift” to a policy of over-regulation without justification.
“This path will make it much harder to do pro-consumer network management, and is more likely to balkanize the Internet into distinct private networks and specialized services,” Brake said in a prepared statement.
“It is unfortunate to see the commission forging ahead with an order so fraught with legal challenges and political opposition while Congress is actively looking for a compromise that will put open Internet regulations on firm footing,” he added.
Broadband for America’s Honorary Co-Chairs, John Sununu and Harold Ford Jr., warned that Wheeler’s plan could have negative repercussions down the road.
“This proposal would stifle investment, innovation and consumer choice,” the pair said in a prepared statement. “Worse, the chairman's plan could have spillover effects into the broader Internet ecosystem and threaten Silicon Valley companies that rely heavily on the Internet.”
With Wheeler angling for such a strict regulatory approach, it’s unclear whether the rules will be approved by FCC commissioners. If they are, experts believe there is a high probability of legal action by the telecommunications industry.
