Despite spirited public protest both inside and outside its chambers -- with one audience member escorted out by security in the middle of the session -- the Federal Communications Commission (FCC) passed a Notice of Proposed Rulemaking (NPRM) on "Protecting and Promoting the Open Internet" Thursday.
The move -- the latest in a series of net neutrality-related decisions and proclamations from the FCC -- formally sets in motion a process that could lead to paid priority access for some companies on the Internet.
The NPRM was approved by a 3-2 vote that split along party lines, with Republican commissioners Ajit Pai and Michael O'Rielly dissenting from the majority. Democrats Mignon Clyburn and Jessica Rosenworcel voted in favor of the rulemaking proposal, alongside FCC Chairman Tom Wheeler.
In the short term, the only thing the FCC has agreed to do in passing the controversial NPRM is to explore its options for regulating broadband service. The notice specifically seeks public comment on "the benefits of applying Section 706 of the Telecommunications Act of 1996 and Title II of the Communications Act, including the benefits of one approach over the other, to ensure the Internet remains an open platform for innovation and expression."
But, as further reading quickly indicates, the proposed rulemaking contains elements that could transform the US broadband landscape. Among other things, the notice raises the specter of "fast lanes" on the Internet for companies that pay for priority access and much tighter regulation of cable, telco, and other broadband providers. "While the Notice reflects a tentative conclusion that Section 706 presents the quickest and most resilient path forward per the court's guidance, it also makes clear that Title II remains a viable alternative and asks specifically which approach is better. In addition, the proposal asks whether paid prioritization arrangements, or "fast lanes," can be banned outright."
The issue of fast lanes has been a topic of heated debate ever since the FCC decided last month that it could allow broadband providers to offer paid, priority access to Internet bandwidth to companies like Netflix Inc. (Nasdaq: NFLX) Opponents of paid prioritization worry that this would effectively create a two-tiered system favoring companies that can pay for superior data delivery. (See Comcast's Cohen: Define Internet Fast Lanes and FCC's 'Middle Ground' Already Under Attack.)
Chairman Wheeler, who has championed the idea, sought to ease those concerns at this morning's meeting. Reiterating a pledge he made at the Cable Show last month, he said that the FCC would not allow a two-tiered system to develop. "If someone acts to divide the Internet between haves and have-nots, we will use every power to stop it." (See FCC's Wheeler: 'Internet Will Remain an Open Pathway'.)
He further explained his intentions by saying the FCC would consider it commercially unreasonable, and therefore prohibited, if a broadband provider slowed Internet speeds below the threshold described in a subscriber's paid-for service, blocked access to lawful content, or charged a content provider more money to use the bandwidth already paid for by an Internet subscriber. "When content provided by a firm such as Netflix reaches the consumer's network provider, it would be commercially unreasonable to charge the content provider to use that bandwidth for which the consumer had already paid."
Separate from the issue of fast lanes on the last mile of the Internet is the question of how or whether to regulate interconnection agreements between Internet service providers and transit providers like Level 3 Communications Inc. (NYSE: LVLT). Referring specifically to peering and interconnection agreements, Wheeler said today, "That's a different matter. It is better addressed separately."
In addition to considering fast lanes and nondiscrimination policies, the FCC's latest NPRM calls for comment on enhancing transparency rules, how mobile broadband users are impacted by net neutrality rules, and installing "an ombudsperson with significant enforcement authority to serve as a watchdog and advocate for start-ups, small businesses and consumers."
Reaction to the FCC vote was swift and predictable. The National Cable & Telecommunications Association (NCTA) pledged to "work constructively with the FCC and other stakeholders" to "develop a balanced approach that protects the open Internet." However, the trade group also warned against imposing "the heavy-handed regulatory yoke of Title II" on cable operators and other providers.
The American Civil Liberties Union criticized the fast-lanes concept but applauded the idea of regulating broadband providers more closely. And MoveOn, which staged loud protests at the FCC's headquarters and elsewhere, slammed the effort to advance a "two-tiered Internet."
— Mari Silbey, special to Light Reading