On Wednesday, February 4, 2015, Chairman Wheeler proposed long-anticipated rules governing the open Internet, also known as net neutrality, which is critical for education, research, learning, innovation and free speech. The rules rely on the FCC’s legal authority under Title II and Section 706, will apply to fixed as well as mobile broadband, and will prohibit conduct such as blocking or paid prioritization. These rules will be voted on at the FCC’s meeting on February 26.
The proposal reclassifies broadband under Title II of the Communications Act, subjecting broadband service to “common carriage” rules. As noted in the fact sheet, “both the service to the end user and to the edge provider are classified under Title II.”
The proposal also relies on its authority under Section 706 of the Telecommunications Act of 1996, providing greater legal certainty: “Notably, the Verizon court held that Section 706 is an independent grant of authority to the Commission that supports adoption of Open Internet rules. Using it here — without the limitations of the common carriage prohibition that flowed from earlier classification decisions — bolsters the Commission’s authority.”
The proposal “recognizing the advances in technology and the growing significance of wireless broadband access in recent years” applies to mobile, as well as fixed, broadband service.
It also issues several bright line rules:
No Blocking: broadband providers may not block access to legal content, applications, services, or non-harmful devices.
No Throttling: broadband providers may not impair or degrade lawful Internet traffic on the basis of content, applications, services or non-harmful devices.
No Paid Prioritization: broadband providers may not favor some lawful Internet traffic over other lawful traffic in exchange for consideration — in other words, no “fast lanes.” This rule also bans ISPs from prioritizing content and services of their affiliates.
The Chairman’s proposal also discusses forbearance, listing various provisions that will specifically apply as well as those that the FCC will forbear from enforcement. The proposal states that broadband providers will not be subject to rate regulation, will not require broadband providers to contribute to the Universal Service Fund, and will not impose or authorize new taxes or fees.
By relying on both its Title II and Section 706 authority, Chairman Wheeler’s proposal will provide a strong legal basis to ensure that the open character of the Internet is preserved and that the Internet is not divided into fast lanes and slow lanes based on the ability or willingness to pay for enhanced access.