Hoping the third time will be the charm, the Federal Communications Commission announced Wednesday it will craft new rules for net neutrality that will pass muster with the courts.
Twice before, the U.S. Court of Appeals for the D.C. Circuit struck down the commission’s rules barring Internet service providers from discriminating against or blocking network traffic, most recently in January in Verizon v. FCC.
The agency today said it will not appeal that ruling, but instead will open a new docket “to consider the court’s decision and what actions the Commission should take.”
FCC Chairman Tom Wheeler made it clear the agency has no intention of abandoning its attempts to regulate Internet access and competition.
“The FCC must stand strongly behind its responsibility to oversee the public interest standard and ensure that the Internet remains open and fair,” Wheeler said in a written statement. Revised regulations ”will meet the court’s test for preventing improper blocking of and discrimination among Internet traffic,” he said.
How exactly the FCC will do this isn’t clear. The court in Verizon confirmed the FCC has the authority to issue rules covering Internet service providers under Section 706(a) and 706(b) of the Telecommunications Act of 1996. But the split panel said the agency couldn’t classify the providers as a lightly regulated information service, but then impose regulations treating them like common carriers obligated to transmit all content equally.
In an aside sure to alarm telecom companies, Wheeler said the FCC will keep open the option to reclassify Internet access as a telecommunications service, subject to historically heavy, monopoly-era regulation.
“As long as Title II—with the ability to reclassify Internet access service as a telecommunications service—remains a part of the Communications Act, the Commission has the ability to utilize it if warranted,” he said. “Accordingly, the Commission’s docket on Title II authority remains open.”
Lawyers who represent telecom companies call this “the nuclear option.” Former FCC Chairman Michael Powell, now president of the National Cable & Telecommunications Association, told members of the House Energy subcommittee on communications and technology in January that reclassification would be “exceedingly damaging—and more than most people realize. It would be the instant application of thousands of pages of decades-old regulations instantly to the Internet where they heretofore have not been.”
FCC Commissioner Ajit Pai, a Republican, issued a statement criticizing Wheeler’s plan to move forward with new rules.
“In the wake of a court defeat, an FCC Chairman floats a plan for rules regulating Internet service providers’ network management practices instead of seeking guidance from Congress, all while the specter of Title II reclassification hovers ominously in the background,” Pai said. “I am skeptical that this effort will end any differently from the last.”
The FCC is accepting comments on how the commission should proceed. “Comments filed within the next thirty days will be especially helpful,” the agency said.
Contact Jenna Greene at firstname.lastname@example.org.