FCC to Propose Regulating the Internet As a Utility, Saving Net Neutrality

Federal Communications Commission Chairman Tom Wheeler is this week expected to propose strong new rules protecting internet opennes

Sam Gustin

Sam Gustin

​Tom Wheeler. Image: ​House.gov

​Federal Communications Commission Chairman Tom Wheeler is this week expected to propose strong new rules protecting internet openness, according to net neutrality advocates and industry officials, in the most wide-ranging overhaul of internet policy in two decades.

The new rules, which amount to a decisive victory for open internet advocates, represent a key milestone in what's become a multi-year battle over the future of the internet.

On Thursday, Wheeler is expected to circulate a draft order to his FCC colleagues proposing to reclassify internet service providers under the "common carrier" provisions of Title II of the Communications Act. It's a move that public interest groups have been advocating for years—and a step that's bitterly opposed by the nation's largest cable and telecom companies. The FCC declined to comment for this story, but Wheeler's focus on Title II has become an open secret among the tech policy set in Washington.

Net neutrality advocates say that Title II reclassification is the best way for the FCC to ensure that ISPs don't interfere with internet openness, by favoring some websites and services at the expense of others. Over the last six months, millions of people filed comments with the FCC urging Title II reclassification.

"This is a big, important move and something previous FCC officials should have done long ago," said Marvin Ammori, a leading tech policy lawyer and net neutrality advocate. "We are looking forward to hearing the details, but, for internet users, the move to Title II is cause for dancing in the streets."

"Chairman Wheeler seems intent on choosing the correct path to protecting the open internet"

Wheeler's apparent embrace of Title II reclassification represents a remarkable development for a man who spent the bulk of his career lobbying for the cable and wireless industries. As recently as three months ago, Wheeler was still hesitant to push for full reclassification, and was instead floating a "hybrid approach" that drew howls of protest from net neutrality advocates.

Then President Obama got involved.

Obama's strong support for Title II reclassification was a key factor in Wheeler's decision to move ahead with strong net neutrality protections, according to open internet advocates and industry officials. Although the FCC is an independent agency, Wheeler was nominated by Obama, and would have been hard-pressed to defy the wishes of the president.

Net neutrality advocates hailed the news of Wheeler's impending plan. Craig Aaron, president and CEO of DC-based advocacy group Free Press, described Title II reclassification as "one of the most important victories for the public interest in its history."

"From all indications, Chairman Wheeler seems intent on choosing the correct path to protecting the open internet," said Aaron. "If the FCC does that—and also keeps the final order free of loopholes and industry meddling—the chairman should be cheered by the millions who have mobilized to save the internet."

Importantly, Wheeler's plan is expected to prohibit "paid prioritization," commercial arrangements in which broadband providers strike special deals with deep-pocketed internet companies for preferential treatment.

Although Wheeler's new proposal represents a major victory for net neutrality advocates, it is by no means the final word on the matter. Opponents of Title II reclassification have pledged to fight strong new rules in court, and the FCC also faces an inevitable political backlash on Capitol Hill, where many Republicans vehemently object to reclassification.

A protest last November. Image: ​Stephen Melkisethian

For example, Marsha Blackburn, the influential Tennessee Republican, has described net neutrality as "socialistic" and an example of "bureaucratic over regulation that will discourage innovation, hurt competition, and serve as an industry job-killer." Last year, she accused Wheeler of "mimicking some of the most restrictive policies of countries like China."

It's worth noting that over the last decade, AT&T and Verizon have been Blackburn's second and third largest donors, pouring $66,750 and $59,650 into her campaigns, respectively, according to the Center for Responsive Politics. She's also received $56,000 from the National Cable and Telecommunications Association, an industry trade group, and $36,000 from Comcast, the nation's largest cable company.

For years, net neutrality was a relatively obscure topic debated by policy wonks and industry lawyers, but the issue exploded into public view after a federal court struck down most of the FCC's 2010 open internet policy last January. That order prohibited broadband providers like Comcast and Verizon from blocking traffic like Skype or Netflix or putting them into an internet "slow lane."

Wheeler's new plan represents the FCC's attempt to deal with the legal uncertainty created by that decision, and craft a framework that will survive legal challenges. "Title II is the only way to preserve an open internet after the court decision last year," said Ammori. "Crafting the rule on Title II is like building a house on legal rock."

Wheeler's original proposal, floated last April, fell far short of Title II reclassification, prompting a strong backlash from net neutrality advocates. In the months that followed, millions of people flooded the FCC with comments, most of them supporting reclassification. Protesters disrupted FCC meetings and even demonstrated outside Wheeler's Georgetown home, blocking his driveway and temporarily preventing him from going to work.

Last fall, scores of websites staged an "internet slowdown," taking a page from the playbook employed by activists who successfully killed SOPA, the controversial piracy law, several years ago.

Net neutrality is particularly important to internet startups, which argue that strong protections are necessary for the next generation of tech companies to grow and flourish. Without such protections, startups like Netflix, Skype, and even Google, Facebook, and Twitter might have been snuffed out by the big ISPs, net neutrality advocates argue.

"Reclassification is a huge victory for startups and the internet community," said Evan Engstrom, policy director at Engine, a nonprofit group that advocates for hundreds of fledgling internet companies. He said startups would be paying close attention to the substance of the rules. "The FCC must now ensure that the rules it creates under Title II authority are strong enough to prevent ISPs from discriminating against startups and flexible enough to allow the FCC to preempt future threats to the future of the open internet."

Wheeler is expected to circulate his plan this week, ahead of a FCC vote scheduled for Feb. 26. Wheeler needs his two fellow Democratic FCC commissioners to vote with him to approve the rules, which would give him a majority of the votes on the five-member commission.

In his draft order, Wheeler is expected to propose that the FCC avoid some of the more burdensome aspects of Title II regulation through a process known as "forbearance," which gives the agency discretion in how it applies its rules. For example, Wheeler has made clear that the FCC does not intend to regulate the prices charged by the providers.

But even such a "light touch" approach is unlikely to mollify the cable and telecom industry, which vehemently opposes reclassification, arguing that such a move would make them less inclined to invest money to upgrade their networks. Net neutrality opponents describe the principle as government overreach and a "solution in search of a problem."

"Reclassification of broadband Internet access offerings as Title II—telecommunications services would impose great costs, allowing unprecedented government micromanagement of all aspects of the Internet economy," twenty-eight cable and telecom CEOs wrote in a letter to the FCC last year. "Under Title II, new service offerings, options, and features would be delayed or altogether foregone. Consumers would face less choice, and a less adaptive and responsive Internet."

Aaron, of Free Press, said that the big cable and telecom companies "are guilty of spreading tons of misinformation about Title II, and they'll spew more lies as the vote approaches."