Save the Internet protest outside the Federal Communications Commission (FCC) by Free Press, to voice opposition to proposed rules that would limit Net Neutrality.
Save the Internet protest outside the Federal Communications Commission (FCC) by Free Press, to voice opposition to proposed rules that would limit Net Neutrality. (Photo: Diego M. Radzinschi/NLJ.)

In a 3-2 party-line split, the Federal Communications Commission voted Thursday to move ahead with rules that could allow Internet service providers to charge more for faster content delivery but would also add protections for consumers.

Chairman Tom Wheeler formally unveiled a notice of proposed rulemaking, stressing the intention to “protect and promote the Internet as an open platform” by barring broadband providers from blocking content; requiring “commercially reasonable” arrangements for paid prioritization; enhancing transparency; and creating an ombudsman to watch out for consumers and small businesses.

The proposal will be open for public comment for four months.

The commission’s two Republicans came out strongly against the proposal. Commissioner Ajit Pai said that the commissioners—“five unelected officials”—should not take it upon themselves to decide “whether the control of the Internet will reside with the U.S. government or private networks.” He said the matter should be left to Congress.

Commissioner Michael O’Rielly derided the FCC’s legal authority to act, calling it “make-believe,” and said the proposed regulations were “hopelessly vague and unclear” as well as “unnecessary and defective.”

Wheeler’s two fellow Democratic commissioners, Mignon Clyburn and Jessica Rosenworcel, voted to back the chairman but without enthusiasm. “I would have taken time for more input,” Rosenworcel said. “We moved too fast to be fair.”

Clyburn said she was “on the record for preferring a different legal structure” for regulation: Title II of the Communications Act. That statute gives the agency expansive powers to oversee common carriers like telephone companies, which must transmit all content equally. Consumer advocates are urging the FCC to reclassify broadband as a Title II service.

As is, Wheeler’s proposal would not take that step, but rather would retain broadband’s existing classification as a lightly regulated information service. However, it keeps the door open to reclassification. “The commission will seriously consider the use of Title II of the Communications Act as the basis for legal authority,” according to a FCC fact sheet.

For now, the proposal relies on the FCC’s legal authority under Section 706 of the Telecommunications Act of 1996.

In January, the U.S. Court of Appeals for the D.C. Circuit struck down the FCC’s previous attempt to regulate Internet service providers under Section 706, saying the agency could not impose common carrier-type obligations on an information service.

It’s not clear how the new rules would avoid this pitfall.

“The only way to accomplish the chairman’s goals is to reclassify Internet service providers as common carriers,” Free Press president Craig Aaron said. The group and other advocates organized protests in front of the FCC before Thursday’s meeting as well as around the country.

Former commissioner Michael Copps, a Democrat, said in a written statement that the proposal “opens a door to Title II classification but still tilts in favor of the weak legal framework that so far has gotten us nowhere.”

Doug Brake, telecommunications policy analyst with the Information Technology and Innovation Foundation, had the opposite concern. “It is disappointing to see the commission entertain some of the more drastic measures put forth by certain advocates, including the potential of classifying broadband as a Title II, common-carrier service,” he said. “Title II was designed for the formal telephone monopoly of a bygone era and is not suited to the fast-paced innovation we see in IP networks.”

Contact Jenna Greene at jgreene@alm.com or on Twitter @jgreenejenna.