FCC Moves to Revive Net-Neutrality Rules

The agency will try to protect access to Netflix, Google, and other websites.

 Ethernet cables lead to a server at the Rittal stand at the 2013 CeBIT technology trade fair the day before the fair opens to visitors on March 4, 2013 in Hanover, Germany. (National Journal)

The Federal Communications Commission announced a plan Wednesday to enact new net-neutrality regulations aimed at ensuring that Internet service providers can't choke off access to websites such as Netflix, Google, and Skype.

Supporters of net neutrality argue that the Internet should be an open platform where all sites are treated equally. But Republicans have long criticized the concept for unnecessarily restricting the business choices of Internet providers.

Without net-neutrality rules, Internet providers might slow down access to particular websites unless they pay for special Internet "fast lanes."

The FCC's new rules, which have not yet been written, are unlikely to be as strong as the old regulations, which the U.S. Court of Appeals for the D.C. Circuit struck down last month.

FCC Chairman Tom Wheeler chose not to reclassify broadband providers as "common carriers" — which would have likely allowed the agency to reinstate the old rules in their entirety but would have sparked a massive fight with congressional Republicans.

The agency also announced it will not appeal the court's ruling.

The old rules, enacted in late 2010 by Wheeler's predecessor, Julius Genachowski, barred Internet service providers from blocking or discriminating against websites. The rules were a 2008 campaign promise from President Obama, who has repeatedly stated his support for protecting an open Internet since taking office. But Verizon sued, claiming the agency overstepped its authority.

Last month, the D.C. Circuit struck down the rules, saying the FCC was inappropriately treating broadband providers as "common carriers." Traditional phone lines, railroads, airlines, and other services are considered common carriers and must offer service to everyone.

But the court also upheld broad FCC authority to regulate broadband Internet under Section 706 of the Telecommunications Act. The provision allows the agency to encourage the deployment of broadband networks and promote competition.

Liberal advocacy groups had urged the FCC to reclassify broadband as a common carrier service and reinstate the rules. The move would have given the agency sweeping regulatory power over broadband providers. Republicans fiercely oppose that option, however, fearing that the agency would try to take over control of the Internet.

Free Press, a liberal advocacy group, accused Wheeler of caving to pressure from Republicans and industry groups.

"If the agency really wants to stop censorship, discrimination, and website blocking, it must reclassify broadband," Free Press President Craig Aaron said in a statement.

Although Wheeler chose to rewrite the rules under Section 706, he said the the option of reclassifying broadband is still "on the table."

Wheeler said the goal of the new rules will still be to prevent Internet providers from blocking or discriminating against websites. But the FCC will likely have to water down the nondiscrimination requirement, in particular, to survive future court challenges.

FCC officials said the agency will rely on a separate court ruling involving data-roaming regulations in which the D.C. Circuit said the FCC has the power to require companies to offer "commercially reasonable terms."

The agency will likely still be able to crackdown on anticompetitive behavior — such as if a broadband provider like Verizon slows Netflix to a crawl to ensure that customers still subscribe to cable-TV offerings. But it remains unclear whether the rules will entirely bar online discrimination. Providers may be able to begin experimenting with new business models in which they charge websites for priority access to users.

Consumer advocacy groups have warned that such a system would ruin the open nature of the Internet and handicap small start-ups that can't afford to pay Internet tolls.

The new rules will expand the transparency requirements of the original net-neutrality order, Wheeler said. The requirements, which the court upheld, require Internet providers to publicly disclose how they manage Internet traffic.

The requirements allow Internet customers as well as Web companies to know how different providers treat their traffic.

Wheeler said the FCC will also look into other opportunities to promote competition for Internet service, such as overturning legal restrictions on the ability of cities and town to offer broadband.

Congressional Democrats applauded Wheeler for moving to protect the open Internet. But he will have to override Republican opposition to enact the new rules.

Ajit Pai and Michael O'Rielly, the two Republican members of the five-member commission, issued statements warning that the FCC is still acting without adequate legal authority.

But Wheeler argued that he will craft the new rules to meet the requirements of the court's decision.

"The FCC must stand strongly behind its responsibility to oversee the public interest standard and ensure that the Internet remains open and fair," he said.

"The Internet is and must remain the greatest engine of free expression, innovation, economic growth, and opportunity the world has ever known. We must preserve and promote the Internet."