More than a year after first announcing plans to develop binding rules aimed at protecting the free flow of services and applications over the Internet, the head of the Federal Communications Commission on Wednesday said he will bring a net neutrality order to a vote when the agency meets later this month.
FCC Chairman Julius Genachowski billed the proposal as a compromise, saying the rules would afford service providers sufficient flexibility to manage their networks and root out unlawful or malicious traffic, while barring them from blocking legitimate content.
“The record and the proceeding that we’ve run over the past year, as well as history, shows that there are real risks to the Internet’s continued freedom and openness. Broadband providers have natural business incentives to leverage their position as gatekeepers to the Internet,” Genachowski said this morning. “The proposed open Internet framework is designed to guard against these risks, while recognizing the legitimate needs and interests of broadband providers.”
The framework Genachowski outlined this morning comes after months of intense public debate and closed-door talks among various stakeholders. The version Genachowski plans to bring to a vote at the Dec. 21 meeting is modeled after a compromise framework backed by Rep. Henry Waxman (D-Calif.), the chairman of the House Energy and Commerce Committee. That effort derailed in September after Republican committee members withdraw support for a compromise bill, citing concerns about expanding the FCC’s regulatory oversight authority in the broadband sector.
Genachowski’s new proposal backs away from an earlier idea he floated that would reclassify broadband access as a so-called Title II telecommunications service, a designation under communications law that would put the FCC on surer ground as it seeks to put rules in place overseeing the sector. Genachowski said that move, which touched off a whirl of protest from phone and cable companies, was a necessary step following a court ruling that struck down an earlier FCC net neutrality order against Comcast that had been predicated on the existing Title I status.
But this morning he credited the FCC’s legal staff with developing a framework for net neutrality rules under Title I that would survive any challenge in the courts. “I am satisfied that we have a sound legal basis for this approach,” he said.
The head of the principal cable trade group, the National Cable and Telecommunications Association, cautiously praised Genachowski’s proposal, noting with particular satisfaction that the chairman had taken Title II off the table.
“While not perfect from our point of view and in the absence of further action by Congress, we believe that it is a fair resolution of this set of issues,” NCTA President and CEO Kyle McSlarrow said in a statement. At the same time, McSlarrow, whose group has been heavily involved in the recent string of net neutrality negotiations, held out the possibility of a legal challenge if the final order oversteps.
“Should the order change in any material way from our understanding, we reserve our rights to vigorously challenge any such rule,” he said. “Accordingly, NCTA will await the final resolution of the order at the next FCC meeting before making a final determination of our views or on any actions we might take subsequent to that meeting.”
In addition to backing away from Title II, Genachowski’s proposal would give wireless providers more flexibility to manage their networks for congestion, recognizing that mobile broadband operators have only a fraction of the capacity of their fixed-line counterparts. Wireless carriers would be subject to “a basic no-blocking rule,” Genachowski said, but spared from the more rigorous rules for wired network operators.
Both wired and wireless providers would also be subject to transparency requirements obligating them to make disclosures about how they manage their networks.
“Sunshine can help solve these problems early, reducing the number of issues that even come to the FCC,” Genachowski said.
For wireline providers, the proposed framework would go farther to establish a nondiscrimination obligation, both for devices and applications, effectively codifying as rules the 2005 policy statement that the FCC cited as the basis for its order punishing Comcast for secretly blocking traffic on its network, an argument that the U.S. Court of Appeals for the D.C. Circuit rejected earlier this year.
“Consumers and innovators have right a right to send and receive lawful Internet traffic — to go where they want and to say what they want and to use the devices of their choice,” Genachowski said. “Thus the proposed framework would prohibit the blocking of lawful content, apps services and the connection of non-harmful devices to the network.”
But within the five-person FCC, the two Republican commissioners quickly criticized the chairman’s proposal, blasting the idea of Title I net neutrality rules on the dual grounds that the agency lacks the legal authority to act following the Comcast ruling, and that the Internet ecosystem is best served by the absence of regulation.
Commissioners Robert McDowell and Meredith Attwell Baker urged Genachowski to defer to Congress on the matter, noting that a majority of members had signed letters expressing opposition to the earlier Title II proposal.
“Moving forward would be a direct rebuke of Congress that could jeopardize unnecessarily our ability to partner with Congress on issues of great national importance,” Baker said. “Just because Title II is even more destructive to investment does not transform Title I into a middle ground.”
In contrast, the two other Democrats on the panel have spoken repeatedly about their hopes for strong net neutrality protections, with one, Michael Copps, responding to Genachowski’s announcement with a pledge to work to strengthen the order ahead of the vote later this month.
Genachowski, for his part, stressed that he would still like to see Congress act to clarify the FCC’s broadband authority.
“I want to emphasize that moving this item to a vote at the commission is not designed or intended to preclude action by Congress,” he said this morning. “As always, I welcome the opportunity for the commission to serve as a resource to Congress.”