Title II Reclassification FCC’s Best Option on Rebuilding Net Neutrality Nondiscrimination Rule, Advocates Say
Net neutrality advocates said the best way for the FCC to reinstate a nondiscrimination rule for broadband ISPs -- akin to the rule the U.S. Court of Appeals for the D.C. Circuit just struck down -- was to reclassify broadband Internet as a Title II service. Reclassification is one of several options the FCC could take to regroup on net neutrality following the D.C. Circuit’s Tuesday ruling (WID Jan 15 p1), though other non-prescriptive measures could also work, the advocates and other industry experts said Friday during a Congressional Internet Caucus Advisory Committee event.
Sign up for a free preview to unlock the rest of this article
Export Compliance Daily combines U.S. export control news, foreign border import regulation and policy developments into a single daily information service that reliably informs its trade professional readers about important current issues affecting their operations.
The FCC will ultimately take some action on net neutrality in response to the D.C. Circuit ruling, “but what that action will be is still not clear,” said Markham Erickson of Steptoe & Johnson, lead counsel to both the Internet Association and the Open Internet Coalition. The D.C. Circuit ruling still provides the FCC with “broad authority” under Section 706 of the Communications Act to regulate broadband, Erickson said. Beyond a potential en banc D.C. Circuit or Supreme Court review of Verizon v. FCC, “there’s nothing to stop” the FCC from revisiting one of several longstanding proceedings on net neutrality, he said. The FCC could conceivably either ask for new comments on those proceedings or expedite the process by proceeding with the comments it originally collected, said Free Press Policy Director Matt Wood.
Title II reclassification would result in a “very different conversation” about the FCC’s regulatory authority over broadband, Wood said. Free Press is one of the groups pushing the FCC to reclassify following the D.C. Circuit ruling. “It’s not that the FCC can’t apply common carrier rules using the power it has, it can’t apply common carrier with the power it chose to use here,” he said. If FCC Chairman Tom Wheeler doesn’t choose to reclassify broadband as a Title II service, “we think you can’t really get anything like net neutrality back,” Wood said. “I would say, ‘does he want to be the chairman who said the Internet is now the discrimination zone where you can be discriminated against by your carrier for purposes they'll say are innovative or saving you money but we'd say are exactly the opposite?'"
Russell Hanser of Wilkinson Barker, a former wireline aide to then-FCC Commissioner Kathleen Abernathy, said net neutrality “is a means to an end” and he’s skeptical of any FCC push to reclassify broadband. The commission would be “saying ‘we didn’t get to do the thing we want by giving our best shot at applying the statute to these services the first time, so in order to be able to get into the regulatory bucket we want to be in, we're going to change our mind,'” he said. That would be “the exact kind of outcome-oriented decisionmaking that proponents of net neutrality would rightly get very angry about if it were pursued in the pursuit of some other end,” said Hanser, who represents ISPs and other telecom companies.
The FCC can still “do a lot” to regulate broadband, and ISPs generally accept that they will be subject to some regulation, Hanser said. The FCC could also adjudicate discrimination on a case-by-case basis, which would not require “prescriptive regulations,” Erickson said. The FTC can also regulate potential anticompetitive behavior, but consumers and the market hold the “principal power to stop wanton discrimination,” Hanser said.