FCC Chairman Wheeler Moves Toward Strong Net Neutrality Rules

After facing mounting pressure from consumer groups, grassroots activists and even President Obama, the Federal Communications Commission’s (FCC) top regulator has suggested that he would support a regulatory framework that advocates say is the strongest proposal for protecting net neutrality – the idea that all internet content should be treated equally.

Speaking before a packed house at the Consumer Electronics Show in Las Vegas on Wednesday, FCC Chairman Tom Wheeler hinted that he would support reclassifying the internet as a “common carrier” under Title II of the Communications Act, allowing the internet to be regulated as an essential public utility like landline telephone service.

Consumer groups and internet freedom activists have fiercely advocated for Title II reclassification, which they claim is the only way to ensure that internet service providers don’t strike so-called “paid prioritization” deals that would create “fast lanes” for content providers that can afford to pay extra fees and “slow lanes” for the rest.

The debate over the FCC’s latest proposals to protect net neutrality has raged for nearly a year. Net neutrality activists have regularly held loud protests at FCC meetings and flooded the FCC’s public comment inbox with millions of letters and comments. At one point, the sheer number of comments overloaded and shut down the agency’s server.

Wheeler’s position on net neutrality regulation has taken some twists and turns. He was originally skeptical of Title II reclassification and proposed classifying the internet under a different section of federal law while using the FCC’s regulatory authority to intervene if broadband providers struck “paid prioritization” deals that are not “commercially reasonable.” After significant public outcry, Wheeler agreed to keep the Title II proposal on the table.

Broadband companies generally supported Wheeler’s original approach, but now Wheeler has suggested that he is moving away from the proposal because the “commercially reasonable” standard could be interpreted as what is reasonable for internet service providers, not what is reasonable for consumers and innovators, according to reports. Instead, the “just and reasonable” standard under Title II would be better.

“We’re going to propose rules that say that no blocking, no throttling, [no] paid prioritization, all that list of issues, and that there is a yardstick against which behavior should be measured. And that yardstick is ‘just and reasonable,’ ” said Wheeler, who was quoted in the Los Angeles Times.

While Wheeler did not endorse reclassification outright and suggested that internet providers may be exempt from some Title II requirements originally drawn up for telephone companies, net neutrality advocates are cautiously celebrating the news.

“Chairman Wheeler appears to have heard the demands of the millions of internet users who have called for real net neutrality protections,” said Craig Aaron, CEO of the nonpartisan, pro-net neutrality group Free Press. “Wheeler now realizes that it’s best to simply follow the law Congress wrote and ignore the bogus claims of the biggest phone and cable companies and their well-financed front groups.”

Wheeler came under further pressure in November, when President Obama publically announced his support for Title II reclassification. Obama appointed Wheeler last year, but the FCC is an independent federal agency.

The broadband industry, fearing cumbersome regulations that it claims would stifle investment and innovation, has pushed back against the Title II proposal with its own media campaign and lobbying efforts.

“The president’s call for public utility regulation of the internet, a shift that will redefine the internet, insert the government deeply into its management and invite other countries to do the same, is contrary to the best interests of the nation and America’s technology future,” said USTelecom President Walter McCormick, in response to Obama’s announcement in November. USTelecom is a trade group representing broadband providers.

Broadband companies are reportedly working with their allies in the Republican-controlled Congress to write bipartisan legislation that would preempt an FCC effort to regulate the internet under Title II.

The FCC is also expected to face legal challenges from the broadband industry if it takes the Title II route. Federal courts blocked the FCC’s previous attempts at implementing net neutrality rules after internet providers filed lawsuits, but net neutrality advocates have long argued that Title II reclassification would give the FCC the legal authority it needs to win in court.

“Of course the devil will be in the details, and we await publication of the agency’s final decision,” Aaron said. “But it’s refreshing to see the chairman firmly reject the industry’s lies and scare tactics.”

Wheeler is expected to circulate a final net neutrality proposal among his fellow commissioners in early February, and the FCC is scheduled to vote on the rules on February 26.