Wheeler: Net Neutrality Rules By Year's End

FCC official says new rule proposal is way to restore old rules, but legally sustainable

FCC Chairman Tom Wheeler said Thursday that he plans to have new network neutrality rules on the books by the end of the year.

In a blog posting he responded to a flood of criticism over reports that a draft Notice of Proposed Rulemaking (NPRM) on new network neutrality rules would allow for paid priority broadband service to consumers.

"The Notice proposes the reinstatement of the Open Internet concepts adopted by the Commission in 2010 and subsequently remanded by the D.C. Circuit,” he said. "The Notice does not change the underlying goals of transparency, no blocking of lawful content, and no unreasonable discrimination among users established by the 2010 Rule. The Notice does follow the roadmap established by the Court as to how to enforce rules of the road that protect an Open Internet and asks for further comments on the approach."

Wheeler is circulating a draft of the proposed new rules to the other commissioners Thursday, with a plan to vote on the Notice of Proposed Rulemaking at the May 15 meeting.

An FCC official speaking on background confirmed that there would be no flat ban on discrimination--which means on paid priority--but pointed out that the 2010 network neutrality rule thrown out by the court had no flat ban either, but was a ban on unreasonable discrimination.

The D.C. Court of Appeals, which threw out the anti-(unreasonable) discrimination and anti-blocking net neutrality rules, instructed the FCC that a rule limiting discrimination could pass muster if the FCC applied a commercially reasonable standard on a case-by-case basis to efforts to differentiate price and services. The FCC's alternative would be to reclassify broadband under Title II, where it could propose common carrier type prohibitions.

According to the official, the new rules are the chairman's effort to restore the old rules--which are currently not in effect--to do so expeditiously, and in a way that is legally sustainable.

In the NPRM, the FCC will ask whether some instances of paid priority service are so egregious as not to be reasonable. If it concludes that were the case, it could disallow paid priority in that case, but not in, say, the case of a remote heart monitor that gets preferential treatment.

The FCC will look at issues like consumer harm, harms to competition, and more in determining what is commercially reasonable, and will either respond to complaints or monitor the market and take action on its own initiative. That will leave it the power to disallow any number of practices based on its case-by-case review, depending on whether or not it concludes they harm consumers, competition, innovation, and investment.

The proposal -- it is only that, with plenty of opportunity for comment -- would essentially take the same approach to mobile broadband as the 2010 rules, which is to apply the transparency and no-blockling rules, but not the anti-(unreasonable) discrimination part. But that is also up for discussion. The FCC also asks in the proposal whether it should instead reclassify broadband under Title II, so Wheeler is still keeping that option on the table.

"The cable industry supports an Open Internet and will continue to provide consumers unfettered access to legal content of their choosing," the National Cable & Telecommunications Association said in a statement. "We look forward to participating in the discussion about the best path forward to ensuring that American consumers enjoy a vibrant and open Internet experience while the marketplace encourages continued investment and innovation in our networks.”