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In late February the Federal Communications Commission issued new rules aimed at preventing Internet providers from designating fast and slow lanes for Web traffic. Internet advocates declared victory. But others have taken issue with -- and action against -- the FCC for the way it has gone about implementing, or more precisely, reasserting, Internet neutrality.
The FCC initially laid out its plan for net neutrality five years ago, when it issued a set of regulations known as the FCC Open Internet Order 2010. The rules required Internet providers to treat all similar content the same and not dole out bandwidth on the basis of economic return. But in January of last year, in a case initiated in 2011 by Verizon Communications Inc., a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit vacated those provisions on the grounds that the FCC had previously classified Internet providers as “information services” rather than “telecommunications services,” thereby exempting them from regulation as “common carriers” under Title II of the federal Communications Act of 1934.
Fearing the ruling would usher in an era of tiered Internet service, millions of Americans -- although there’s some disagreement about the exact number -- signed petitions and submitted comments urging the FCC to take action to restore net neutrality. And in November of last year President Obama, who’d pledged his support for net neutrality as a candidate in 2007, called on the FCC to adopt the strongest rules possible to ensure a free and open Internet. Three months later the FCC issued new rules reasserting net neutrality by reclassifying “information services” as “telecommunications services.”
“The Internet has replaced the functions of the telephone and the post office,” FCC Chairman Tom Wheeler said during hearings on the rules before the House Judiciary Committee, according to excerpts transcribed by Ars Technica. “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.”
Columbia University law professor Tim Wu, who coined the term “net neutrality” over a decade ago, called the FCC’s decision “historic” on the progressive news show Democracy Now! San Francisco-based Internet entrepreneur and activist Brewster Kahle described it as “a big step toward locking the web open,” according to the Associated Press. And Julia Graber, organizer for the nonprofit organization Free Press said it was likely “the biggest public interest victory at the FCC -- because today a million David’s rose up against a big goliath,” the AP reported.
Officials in Wilson, North Carolina and Chattanooga, Tennessee praised the FCC for another element of its ruling preempting state laws in the two states restricting expansion of high-speed Internet services the cities have established.
“By its action today, the FCC has empowered local North Carolina communities to do whatever it takes for all of our citizens to realize the benefits of access to essential Gigabit infrastructure in our beautiful state,” said an official statement from the City of Wilson, as reported in Government Executive.
The publication also cited a tweet from Chattanooga Mayor Andy Berke, stating: “Thx to the FCC for recognizing the importance of access & digital equity.”
While the FCC’s ruling applied only to North Carolina and Tennessee, it sets a precedent that could open the door for municipalities in other states with similar public broadband restrictions (see Bird’s eye view). And that prospect was acknowledged by Next Century Cities, a coalition of municipalities working to make it easier to create public broadband networks.
“Today the FCC stood behind local leaders in Wilson and Chattanooga and their call for local choice. But this decision is about more than these two communities -- it is a major step forward for all communities seeking next-generation Internet to transform the way we learn, work, and live,” said a statement from Deb Socia, Next Century’s executive director.
Praise for the FCC ruling was not universal, however. Two FCC commissioners, Ajit Pai and Michael O’Reilly, voted against it. The commissioners argued that the hands off approach the FCC had taken with the Internet going back to the Clinton administration had enabled its explosive growth, and the decision of the three commissioners who comprised the majority constituted a usurpation of Congressional authority.
“This order imposes intrusive government regulations that won’t work, to solve a problem that doesn’t exist, using legal authority the FCC doesn’t have,” said Pai, as Government Technology reported.
He added that the rules would result in higher fees and taxes that would ultimately increase costs for consumers.
William Pound, executive director of the National Conference of State Legislatures, took exception to the FCC’s preemption of North Carolina’s and Tennessee’s municipal broadband laws.
“NCSL takes the preemption of states very seriously and will continue to pursue our options to ensure that any action taken by the FCC on municipal broadband networks is overturned by the courts,” he said.
Some of the harshest words came from critics in Congress. According to The Washington Post, during the House Judiciary’s hearings on the rules, U.S. Rep. Louie Gohmert (R-Texas) literally shouted at FCC Chairman Wheeler: “You’re playing God with the Internet.... That’s not your job.”
GOP members of the U.S. House Energy and Commerce Committee’s Subcommittee on Communications and Technology said they expected the ruling to “trigger a stampede to the courts.”
“A 3-to-2 party-line vote is not the policy consensus this issue deserves,” they said in a statement, according to Government Technology. “Once these rules finally emerge from the shadows, it will become clear that the FCC’s action...does not end the debate.”
They may be right. Less than a month after the FCC issued its ruling, two separate lawsuits were filed, by industry trade group US Telecom and Alamo Broadband, challenging the new rules.
“We do not believe the Federal Communications Commission’s move to utility-style regulation invoking Title II authority is legally sustainable,” said US Telecom President Walter McCormick, as The Washington Post reported.
Congressional action on the issue is also in the works, including a Republican-backed bill that would cut the FCC’s budget but also a bipartisan compromise that would legally prohibit Internet companies from prioritizing content while returning them to their former status as information services.
With Republicans wanting to limit the FCC’s authority to regulate Internet providers under Title 2 of the Communications Act and Democrats wishing to enshrine net neutrality into law that might be less likely to be overturned by the courts or a future GOP-led FCC, there’s at least potential for a deal.
“Each side can give the other the thing it wants the most,” Rick Boucher, a former 14-term Democratic U.S. House member and honorary chairman of the Internet Innovation Alliance, told the Los Angeles Times. “This is an optimal moment to legislate.