The Washington, D.C. Court of Appeals told the FCC in January that parts of its Open Internet Act, also known as the rules of net neutrality, were not enforceable. The FCC has now amended the unenforceable parts in order for the act to pass judicial muster. Many, however, are vehemently objecting to the changes that FCC Chairman Tom Wheeler has made. Net neutrality proponents claim the changes leave the door open for internet service providers to make data “express lane” deals with content providers. Many strongly believe that the long-term net effect of such deals will be control over the internet by a handful of cable and content providers. In statements to the press and on an FCC blog post, Tom Wheeler has denied that the new proposal limits the openness of the internet.
While the January court decision was a major disappointment for net neutrality advocates, it also had a silver lining: the court acknowledged that the FCC has jurisdiction over broadband access. This sets a strong precedent for any internet service providers contesting that authority, which they have indeed challenged in the past. Now, for the first time in a decade, the FCC has the ability to enforce those rules and regulations that are deemed legally enforceable. The January court decision struck down the parts of the Open Internet Act prohibiting ISPs from blocking or discriminating unreasonably either against or for any lawful services, applications, or content. It upheld the part that required broadband services to disclose their network management practices.
The FCC’s new proposal will not be released to the public until May 15 at the soonest, but according to sources, it says that ISPs are not allowed to act in a “commercially unreasonable manner to harm the internet.” This includes favoring traffic from affiliated entities, but it is the interpretive differences between the phrases “commercially unreasonable discrimination” and the old rule’s “unreasonable discrimination” that worry many. Among several other slippery slopes that the subtle language change sets up, it is contended that lawyers will always be able to come up with a plausible argument to show an action’s “commercial reasonableness.”
As for the accusation that the FCC is “gutting the Open Internet rule,” Chairman Wheeler said that it is “flat-out wrong.” Wheeler stated that there has been no “turnaround in policy.” The new Open Internet proposal, said Wheeler, “will restore the concepts of net neutrality consistent with the court’s ruling in January.”
The draft proposal was circulated to the other four FCC commissioners on Thursday. If it is accepted, it will be released for public comment on May 15th. If it is not accepted, Wheeler will go back to the drawing board. After group acceptance and a public comment period, the final vote will take place. The two staunch Republican commissioners, Michael O’Reilly and Ajit Pai, are predicted to place business interests ahead of net neutrality in that final vote. In contrast, the two Democrat commissioners, Jessica Rosenworcel and Mignon Clyburn, are likely to privilege net neutrality over business interests. Thus, odds are that the final vote of the agreed-upon version of the Open Internet proposal will go 3-2 pro-business. An FCC spokesperson explains it quite differently, stating that there is currently a regulation gap and that it is being addressed in a quick and aggressive manner by Chairman Wheeler in order to protect consumers and entrepreneurs. The new rules are expected to take effect before the close of this year.
By Donna Westlund