The FCC's Hybrid Net Neutrality Plan Could Break the Open Internet Coalition

There are signs that the pro-net neutrality coalition is under increasing strain as the Federal Communications Commission nears a decision over the form and scope of its new Open Internet rules.

The FCC is seriously considering a "hybrid" approach that seeks to forge a compromise on one of the most contentious issues in tech policy—and that compromise could end up dividing what has historically been a strong, largely unified bloc of net neutrality advocates.

FCC Chairman Tom Wheeler has made clear that he wants the agency's new rules to withstand legal scrutiny. This is particularly important because the FCC's net neutrality rules have suffered high-profile legal defeats, most recently in January when a federal judge threw out most of the agency's previous Open Internet order because it was built on faulty legal authority.

In the wake of that ruling, many public internet groups coalesced around the idea that the FCC should reclassify internet service providers, or ISPs, under the "common carrier" provisions of Title II of the Communications Act of 1934.

Such reclassification, which would treat ISPs as "telecommunications" services, would give the agency greater power to prevent ISPs from blocking or discriminating against online content or services, two concepts at the heart of net neutrality.

It's worth noting that a decade ago, the FCC chose not to classify ISPs in this way, but rather as "information" services—a fateful decision that many experts argue laid the groundwork for the legal defeats and cloud of uncertainty that has for years swirled around the agency's Open Internet rules.

Earlier this year, FCC chairman Wheeler proposed new rules that would stop short of reclassification and instead rely on the agency's existing authority under Section 706 of Telecommunications Act of 1996. This prompted howls of protest from Title II advocates, and a record-breaking 3.7 million public comments, most of them urging reclassification.

Recently, the idea of a new, "hybrid" approach to Open Internet rules has gained currency in some quarters of the public interest community, threatening to undermine the Title II reclassification consensus that emerged after Wheeler's proposal earlier this year.

One "hybrid" approach under discussion would split internet service into the front-end, or "last mile," relationship between ISPs and users, and the "back-end" relationship between ISPs and the online companies that deliver content over their "pipes." In this compromise approach, the FCC would classify the "back-end" relationship under Title II rules, while leaving the "last mile" relationship under the FCC's existing Section 706 authority.

Importantly, this approach would still leave room for "paid prioritization," according to the Wall Street Journal, which broke the story.

Paid prioritization refers to commercial arrangements in which an ISP could strike a deal with an online video company, for example, to offer it privileged service on its network. Many net neutrality advocates argue that such arrangements could spell the end of net neutrality because they would give deep-pocketed corporate giants an advantage over startups, imperiling the emergence of the next YouTube, Skype or Netflix.

For the FCC, such an approach would amount to a compromise between hardcore Title II proponents and the corporate interests warning that reclassification would have a chilling effect on investment and amount to government overreach.

Such a "Solomonic" deal might also appeal to some net neutrality advocates who are keen to see new rules built upon a solid legal foundation. A compromise approach could lessen the fierce legal and political blowback the FCC would face from the ISPs and GOP lawmakers.

The Journal report prompted a range of responses from public interest groups, suggesting that the net neutrality coalition may be poised for a schism, with some groups sticking to their Title II guns, and other groups warming to a "hybrid" approach.

Among the former group, Free Press and the Electronic Frontier Foundation issued strong statements insisting that full Title II reclassification is necessary to protect net neutrality.

"Such an untested, too-clever-by-half approach is bad law and a bad idea," said Craig Aaron, president and CEO of Free Press, referring to the "hybrid" approach. "It will not survive in court, and it is clearly inferior to reclassifying broadband under Title II of the Communications Act. He added: "This approach will only serve to squander the political support of millions and millions of Americans who have weighed in at the agency asking for strong rules that will stand up in court."

Corynne McSherry, intellectual property director at EFF, also believes that full Title II reclassification is necessary to protect net neutrality. "If the FCC is going to craft and enforce clear and limited neutrality rules, it must first do one important thing: reverse its 2002 decision to treat broadband as an 'information service' rather than a 'telecommunications service,'" McSherry wrote in a blog post. "This is what's known as Title II reclassification."

Other public interest groups, however, appear more sympathetic to the idea of a "hybrid" approach. "We believe that a hybrid model can be a workable, sound approach to establishing the FCC's authority to promulgate meaningful open Internet rules," said Erik Stallman, Center for Democracy and Technology Open Internet Project Director. "Most importantly, the FCC must maintain focus on strong, end-to-end open Internet protections."

And Public Knowledge, long a stalwart proponent of net neutrality, issued a statement praising the FCC for "moving towards a Title II framework" in its process. "Although there are many details that do not appear to have been worked out, we are confident that the proposal they're considering could use Title II and other regulatory tools in a manner that effectively addresses the most important issues in the debate," said Gene Kimmelman, the group's president.

Kimmelman added that "reports of allowing inappropriate paid deals between ISPs and edge providers is worrisome," and said that the FCC should explain "what sort of prioritization is allowed and if allowed, why that level of prioritization is not harmful."

It's important to note that the "hybrid" approach under discussion even includes a Title II component, representing a non-trivial change in Wheeler's position. It shows that the fierce Title II advocacy by many groups has had an impact on Wheeler's thinking.

It's also worth noting that the "hybrid" approach is just one of several under consideration, including full Title II reclassification and an approach that relies on the FCC's existing 706 authority.

A FCC spokesperson declined to comment on the various approaches under discussion because no decision has been reached, but said that "all Title II options are under serious consideration," meaning that full reclassification of ISPs as common carriers is still possible.

For Marvin Ammori, a prominent First Amendment lawyer, and other net neutrality advocates who believe in full Title II reclassification, the apparent move by some in the public interest community toward compromise is a worrisome development. "Now we'll see who is really committed to fighting for strong net neutrality rules that are lasting and will stand up in court and protect Americans, and who cares more about just being at the table," said Ammori.

In truth, whatever path the FCC chooses is bound to anger some constituencies. A "compromise" solution may splinter the net neutrality coalition, but that won't change the fact that the FCC's new rules will almost certainly wind up in court once again.