Everything You Ever Wanted to Know About the FCC’s Net Neutrality Proposal

All eyes were on the Federal Communications Commission (FCC) last week as the agency proposed rules marking its third attempt at establishing net neutrality regulations. Grassroots activism and swarms of public comments helped shape the current proposal, which asks for public input on several key issues that could determine the future of the internet. In their statements, the FCC commissioners made it clear last week that they want to hear from the public before finalizing the rules. This is our chance to tell the government how to guarantee a free and open internet. Here’s a rundown of key issues so you can make your voice heard:

OK, what is net neutrality again?

Net neutrality is the idea that internet service providers and governments should not discriminate against or block legal content on the web. If a company like Verizon slowed access to or blocked a competing firm’s website on its networks, it would be violating the concept of net neutrality.

Are there any federal regulations to keep the internet neutral?

No. Last week, the FCC only proposed net neutrality, or “open internet” rules and asked for public comment on several contentious issues. The agency plans to finalize the rules later this year. Big internet service providers have pledged not to endanger net neutrality in the meantime, but there is currently nothing stopping them from harming the internet, and the FCC has already determined that they have the “incentive and ability” to do so.

What happened to the FCC’s old rules?

The FCC has tried twice in the past decade to establish open internet rules, but broadband companies sued the agency and won both times. In each case, a federal appeals court found that the FCC failed to craft the rules under sections of federal communications law that would give the agency authority to enforce them.

So what’s the FCC’s plan now?

The FCC has a new plan to establish its regulatory authority and is considering another plan that is more popular among consumer advocates.

Under FCC Chairman Tom Wheeler’s current proposal, the FCC would establish net neutrality regulations under Section 706 of the Telecommunications Act of 1996. Wheeler argues that the recent court ruling that threw out the agency’s 2010 Open Internet Rules made it clear that establishing another set of rules under Section 706 would be the quickest route to putting net neutrality regulations on the books.

Internet freedom advocates, however, argue that the FCC must reclassify the internet as a “common carrier” under Title II of the Communications Act in order to enact regulations with teeth that can withstand future legal challenges from the industry. After massive public outcry, the commission revised its current proposed rules to ask the public if the FCC should scrap Wheeler’s proposal and take the Title II route. Wheeler has also said that he would take the Title II route if necessary.

“They are going to get sued regardless,” says Craig Aaron, CEO of Free Press, a consumer watchdog group that supports “common carrier” reclassification. “If they actually do Title II reclassification, they will have a much better chance in court.”

Title II, Section 706…What’s the big deal?

Politically, it’s a big deal, and it could define the regulatory future for big internet service providers like AT&T and Comcast. Reclassifying the internet as a Title II common carrier would allow the FCC to regulate the internet as a public utility like telephone service. The broadband industry, the two Republican FCC commissioners (Ajit Pai and Michael O’Reilly) and Republicans in Congress are staunchly opposed to the idea, arguing it would give the FCC too much regulatory power and stifle investment and innovation. Democratic FCC Commissioners Jessica Rosenworcel and Mignon Clyburn have shown increasing support for considering reclassification as grassroots activists rally in support. Last week, a group of Democratic members of Congress wrote a letter to the FCC in support of Title II reclassification, and progressive activists have been campaigning for reclassification since 2010.

Is the FCC creating “fast lanes” and “slow lanes” online?

The proposed rules would not stop broadband providers from striking deals with content providers like Netflix for “priority” access to consumers, basically high-speed “fast lanes” that would allow video to stream faster, for example. Internet freedom advocates – and big Silicon Valley firms like Google and Netflix that would pay for such priority access – are opposed to the idea, arguing that so-called “paid prioritization” would create a two-tiered internet, with “fast lanes” for wealthy content providers and “slow lanes” for everyone else.

Wheeler, however, argues that the proposed rules would not place anyone in “slow lanes.” He says that broadband providers must provide consumers with the internet speeds that they pay for, so any “paid prioritization” deals that “deprive the consumer of the speed that the consumer has paid for” would be considered “commercially unreasonable” and therefore prohibited. In short, broadband companies could set up “fast lanes” for content providers that can foot the bill, but the FCC could intervene if the “fast lanes” degraded speed and service for anyone else.

Wheeler has proposed transparency measures that would require broadband providers to report any practices that would change consumers’ and content providers’ “relationship” with networks. Wheeler says this would give the FCC time to determine if new deals with content providers meet his “commercially unreasonable” standard and allow the FCC to intervene on a case-by-case basis.

Amidst public outcry, the commission added language to the proposed rules asking the public if “paid prioritization” deals could be banned outright, so a federal ban on “fast lanes” is still on the table.

So Wheeler is going to protect us?

That’s what Wheeler says, but his critics remain highly skeptical. Free Press Policy director Matt Wood says he doubts that Wheeler’s plan to regulate the internet under Section 706 would withstand legal challenges. Even if it did, broadband providers could still move the internet toward a two-tiered system, with content from wealthy websites that pay for priority speeds loading faster than everyone else’s.

“The only way to have a fast lane is to slow down everybody else’s traffic,” Wood says.

Wood and other critics argue that Wheeler’s plan to intervene on a case-by-case basis to stop “commercially unreasonable” deals would create a complicated legal minefield that lobbyists and lawyers for wealthy broadband companies are much more equipped to navigate than the average consumers and content providers.

The only way to stop discrimination online, Wood says, is to reclassify the internet as a Title II “common carrier” service.

In its proposed rules, the FCC has made it clear that this option is still on the table, and the commission is asking the public if it can and should reclassify.

How do I submit a comment to the FCC?

The FCC is taking comments on its proposal at [email protected]. The initial deadline for comments in July 15 and the deadline for reply comments is September 15, but the agency is expected to keep the inbox open until it votes to finalize the proposal.