FCC Chairman Signals New Approach to Internet Regulation
January 21, 2014 | by Andrew Regitsky
The ink is barely dry on the January 14, 2014 DC Circuit Court of Appeals decision which rejected the “no discrimination” and “no blocking” provisions of the FCC’s 2010 Net Neutrality rules and supporters of an “open Internet” (all traffic treated the same) are calling for the Commission to take quick action, warning of increased prices and decreased quality of services if the decision is permitted to stand.
Some are calling for the Commission to appeal the decision to the full DC Circuit Court of Appeals and /or to the US Supreme Court. However, that would lead to more years of uncertainty while the case wound its way through the federal legal system with little reason for optimism that the government would win.
Others say that the major mistake the FCC made was to classify broadband Internet service as an “information” service rather than a “telecommunications” service. They argue that the Commission should now reverse itself and reclassify broadband Internet service as a telecommunications service that is tightly regulated under Title II of the 1934 Communications Act. And while the facts may support such a reclassification (the Internet is much more a utility today than it was in 2002), the lobbying and political opposition against it would be beyond fierce, considering the amount of money involved.
Of course proponents of an open Internet could lobby Congress to rewrite the 1996 Telecommunications Act which failed to include broadband regulation and is clearly already outdated. However, such a rewrite would take years and would require political compromise and lead to years of litigation over the ambiguous language it would surely contain.
This leaves the FCC in the awkward position of having the DC Circuit Court’s support for some type of Internet regulation under section 706 of the 1996 Act (which grants the Commission the authority to regulate advanced services for the public welfare), without an apparent vehicle to carry out such regulation. What is the Commission to do?
On January 15, FCC Chairman Wheeler seemed to suggest that the Commission would choose a new approach to Internet regulation. Instead of mandating global rules that could be challenged and overturned in court, the Commission would wait to see what if any problems arose on the Internet and respond to the actual problems on a case-by-case basis. As the Chairman wrote in his January 15, 2014 blog:
If the Commission were to actually take this approach, it would have authority to rely on section 706 to control anti-competitive behavior without treating broadband Internet providers as common carriers. Moreover, the Federal Trade Commission, which has as its mission the protection of consumers and the elimination and prevention of anticompetitive business practices, is an effective backstop for the FCC. This approach is also likely to find support from net neutrality opponents who have argued for years that any anti anti-competitive Internet actions could be effectively handled on a case-by-case basis.
Clearly, net neutrality proponents would not be satisfied with this type of approach and may pressure the Commission to appeal the decision or try reclassification. However, based on the difficulties the Commission would face if it attempted any of the alternatives discussed above, this may be the most realistic way for it to proceed.
