FCC Chairman Tom WheelerNational Journal

This article is from the archive of our partner National Journal

Federal regulators appear to be on the brink of claiming expansive powers over Internet access to protect the principle of net neutrality.

Speaking at the International Consumer Electronics Show in Las Vegas on Wednesday, Federal Communications Commission Chairman Tom Wheeler indicated that he's in favor of President Obama's net-neutrality proposal, which would put broadband Internet service in the same legal category as landline telephones.

Proponents of the regulatory maneuver claim it's the only way the FCC can enact strong net neutrality rules that can hold up in court. Net neutrality is the principle that Internet service providers should treat all traffic equally.

Although Wheeler didn't explicitly commit to any details, he did speak favorably about Obama's position that the FCC should classify broadband Internet as a "telecommunications service" under Title II of the Communications Act. He also argued that the rules should apply to Internet service on cell phones.

Because the FCC is an independent agency, Wheeler is not necessarily bound to comply with Obama's wishes. But the president's statement in November put intense pressure on the FCC chief to invoke the broad authorities under Title II.

Wheeler said he plans to put the regulations up for a vote by the five FCC commissioners on Feb. 26.

Internet providers and Republicans warn that Title II would turn the Internet into a utility, hampering investment and leaving everyone with worse service. The major Internet providers have all pledged to sue if the FCC moves ahead with Title II rules, and Republicans on Capitol Hill are considering their options for a legislative response.

But Wheeler dismissed those concerns, noting that in the wake of Obama's November endorsement of Title II, major Internet providers and cellular carriers have continued to spend billions of dollars upgrading their networks.

He also indicated that he would waive unnecessary provisions of Title II, such as those requiring price controls.

Invoking Title II would be a reversal from Wheeler's initial net-neutrality proposal last May, which prompted a massive public backlash. Millions of people filed comments with the FCC warning that the proposal would allow for a multi-tiered Internet favoring the richest companies. Big websites could pay for access to special Internet "fast lanes," people feared, leaving everyone else behind. 

Wheeler's May proposal would have required Internet providers to handle traffic in a "commercially reasonable" way. He backtracked from that idea on Wednesday.

"It became obvious that 'commercially reasonable' could be interpreted as what is reasonable for the [Internet service providers]—not what's reasonable for the consumers or for innovators," Wheeler said.

Instead, he said he now favors a "just and reasonable" standard. Those words, which he noted appear in Title II, offer the "best protections" for consumers, he said.

Wheeler said that his goal all along has been to issue rules that prevent Internet providers from blocking websites, throttling traffic, or striking any special pay-for-priority traffic deals.

Wheeler did indicate, however, that he would want to allow prioritization of Internet traffic in certain cases, such as for medical devices connected to the Internet.

The FCC enacted net-neutrality rules in 2010 that didn't rely on Title II, but a federal court struck them down early last year. 

Wheeler's comments at the electronics show won praise from net-neutrality advocates. Sen. Edward Markey, a Massachusetts Democrat, said he is "pleased to hear that Chairman Wheeler is being guided by Title II on the FCC's path toward new open Internet rules" and that the section is the "best way to prevent the broadband behemoths from erecting online tollbooths and undermining the openness of the Internet."

The four other FCC commissioners appeared on a separate panel discussion at CES shortly after Wheeler's remarks. The two Democrats didn't explicitly address Title II, although they spoke broadly in favor of net neutrality.

But it was clear that the two Republicans won't support Title II regulation. Republican Commissioner Ajit Pai worried about the effect that Title II would have on "innovation and investment." Although Obama's statement changed the "political landscape," Pai said, the FCC has a responsibility to make its own independent decision.

This article is from the archive of our partner National Journal.

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