By Kate Tummarello - 02/19/14 11:22 AM EST
The Federal Communications Commission on Wednesday said it plans to revamp its rules for net neutrality, ushering in a new battle over whether the government should flex its regulatory powers over the Internet.
The future of the FCC's “open Internet” rules was left in doubt last month after an appeals court overturned them on the grounds that the agency overstepped its authority.
But Tom Wheeler, the FCC’s chairman, said the agency is not backing down from net neutrality, and on Wednesday announced a series of steps aimed at ensuring that Internet providers treat all traffic the same.
In its ruling against the net-neutrality rules, the D.C. appeals court said the FCC’s rules treated Internet providers too similarly to the way the agency treats traditional phone companies, which are more heavily regulated.
A senior FCC official on Wednesday said Wheeler will not attempt to reclassify Internet providers, nor will he appeal the court’s decision.
Instead, Wheeler will start a new process to rewrite the rules to keep providers from blocking and slowing access to websites.
Wheeler will look to the agency’s Data Roaming Order — a set of 2011 rules that require wireless companies to offer data roaming arrangements to each other on “commercially reasonable terms and conditions” — which a federal court upheld after Verizon Wireless challenged the rules, according to the official.
The FCC will also enhance the net neutrality rules’ transparency provision, which requires Internet providers to be open about how they manage network traffic.
In the meantime, Wheeler will hold Internet providers to the commitments they have made to follow the principles of an open Internet, the official said.
Advocates of the net neutrality rules say they keep Internet providers like Verizon and Comcast from discriminating against certain bandwidth-heavy Internet traffic, like subscribers streaming Netflix or using peer-to-peer networks.
But critics, including Republicans on Capitol Hill, say the government rules hinder innovation in the marketplace by preventing Internet providers from experimenting with new business models.
“No matter how many times the court says ‘no,’ the Obama administration refuses to abandon its furious pursuit of these harmful policies to put government in charge of the web," Reps. Fred Upton (R-Mich.) and Greg Walden (R-Ore.) said in a statement.
"These regulations are a solution in search of a problem, and with the many issues on its plate, including implementation of the spectrum incentive auctions, it would be wise for the commission to focus on fostering economic growth, job creation, and competition."
The FCC’s two Republican members, Mike O’Rielly and Ajit Pai, dissented strongly from Wheeler’s decision.
“I am deeply concerned by the announcement that the FCC will begin considering new ways to regulate the Internet,” O’Rielly said in a statement.
Section 706 of the Telecommunications Act “does not provide any affirmative regulatory authority,” O’Rielly said, and a power-hungry FCC could use Wheeler’s interpretation of the law “not just to regulate broadband providers, but eventually edge providers,” or the companies that provide Internet content, like Netflix.
“Instead of fostering investment and innovation through deregulation, the FCC will be devoting its resources to adopting new rules without any evidence that consumers are unable to access the content of their choice,” O’Rielly said.
Pai criticized Wheeler for not running his proposal past Congress.
“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,” he said.
“I am skeptical that this effort will end any differently from the last.”
Congressional Democrats, who had put pressure on Wheeler to act, cheered the FCC's announcement.
Reps. Henry Waxman (D-Calif.) said Wheeler is striving for “the same goal administratively that the bill I introduced earlier this month ... stopping broadband providers from using their market power to block or interfere with the content consumers want to access.”
He said he expects “the FCC to move expeditiously in readopting the rules and grounding them on a strong legal footing.”
Internet providers also voiced support for Wheeler’s plan. Verizon, which brought the case against the FCC that overturned the net neutrality rules, said it is committed to an open Internet.
"Verizon remains committed to an open Internet that provides consumers with competitive choices and unblocked access to lawful websites and content when, where, and how they want,” a company spokesman said in a statement.
Comcast Executive Vice President David Cohen said Wheeler is taking “a thoughtful approach which creates a path for enforceable rules based on the appropriate authority outlined by the court’s findings.”
While net neutrality advocates generally applauded Wheeler’s announcement, some said the chairman's plan does not go far enough.
Free Press — which pushed the agency to reclassify Internet providers to more easily regulate them — criticized Wheeler for rewriting the rules rather than reclassifying broadband companies.
“Section 706 doesn't work for net neutrality or any of the FCC's stated policy goals,” Free Press CEO Craig Aaron said in a statement.
“If the agency really wants to stop censorship, discrimination and website blocking, it must reclassify broadband as a telecommunications service under Title II.”
Aaron said the agency buckled under political pressure.
“The FCC has the power to reclassify. Nothing in today's announcement forecloses this better path, but the FCC's reluctance to take it is baffling and short-sighted,” he said.
— This story was last updated at 12:54 p.m.