One year after ruling, FCC Web regs hang in balance

One year after an appeals court tossed the Federal Communications Commission’s (FCC) Internet regulations, the agency is preparing to release its new rules — and interested parties are growing restless.

“We are on the first anniversary right now of the rules having been struck down,” Sen. Ed MarkeyEdward (Ed) John MarkeyClimate hedgehogs and foxes Overnight Energy: Trump ends talks with California on car emissions | Dems face tough vote on Green New Deal | Climate PAC backing Inslee in possible 2020 run AOC's green deal isn't new — it's been a flop in Germany MORE (D-Mass.), an advocate for reclassifying the Internet as a utility, said on the Senate floor. “There is nothing.”

A year ago Wednesday, the U.S. Appeals Court for the District of Columbia struck down the FCC’s rules requiring that all Internet traffic be treated equally, setting off a yearlong battle over the rewrite.


The court ruled that because broadband Internet had been classified as an information service, as opposed to a telecommunications service, the FCC’s regulations were invalid.

Since then, Chairman Tom Wheeler has issued an initial proposal for new rules, the public submitted nearly 4 million comments on the subject, President Obama inserted himself into the debate and service providers threatened further litigation.

Wheeler appears poised to issue regulations to reclassify broadband Internet as a utility, similar to traditional telephones, in order to impose the strongest rules possible to ensure that Internet service providers like Verizon and Comcast do not treat traffic to various websites differently.

Verizon prevailed in its lawsuit a year ago when the court found the FCC had overstepped its authority. Advocates believe reclassifying the Internet under Title II of the Telecommunications Act will put the rules on more stable legal footing.

And those advocates appear to be getting their way, to the chagrin of Internet service providers and Republicans, who say the rules will stifle innovation and raise taxes on consumers.

The new proposal is slated to be circulated internally among members of the commission on Feb. 5 and voted on later that month.

“The past year has confirmed two things,” Michael Glover, Verizon’s vice president of public policy, said in a statement. “First, this debate really hasn’t been about an open Internet, but about how heavily broadband networks should be regulated.”

The second, he said, is that Congress itself should settle the debate by creating a clear policy for today’s Internet. Multiple providers have indicated that the FCC’s newest regulations could land it right back in court.

Below are the five biggest developments from the net neutrality debate in the last year.

First proposal

When writing new rules last May after the appeals court’s decision, Wheeler cited Section 706 of the Telecommunications Act, which gives the FCC authority to craft rules dealing with the treatment of Internet traffic.

But that authority is not as strong as it would be if broadband Internet were reclassified as telecommunications.

Critics who wanted the FCC to go further said Section 706 would leave room for Internet service providers to negotiate priority deals with some websites — essentially creating two tiers of traffic, a regular lane and a “fast lane” for those willing to pay.

In May’s proposed rules, the FCC also sought public comment on reclassifying the Internet as a utility. Advocates hope that will be the primary authority used when Wheeler unveils his updated proposal next month.

Record-breaking comments

The FCC broke its record for public comments after it released its net neutrality proposal. The agency said 3.9 million people voiced their thoughts, surpassing the previous record set by comments over Janet Jackson’s “wardrobe malfunction” at the Super Bowl.

Net neutrality supporters and advocates for reclassification dominated early comments. But a huge surge of comments from a Charles and David Koch-backed group narrowed that gap.

Analyses of the comments set off a dispute between both sides, with net neutrality advocates alleging theirs were undercounted. The back and forth illuminated the limits of the FCC’s public comment system.

Obama gives advocates a boost

The president surprised advocates in November when he made an explicit recommendation in support of reclassifying the Internet while avoiding enforcement of some of the more burdensome regulations that come along with it.

Obama has embraced the idea of net neutrality since his first presidential election, and has made comments in support of banning Internet “fast lanes” as recently as October.

But his recommendations in a YouTube video in November were the most specific he has given, and put public pressure on the independent FCC to follow his recommendations.

Another lawsuit looms

The threat of another lawsuit against the FCC has hung over the reclassification debate. A number of Internet service providers have threatened, at different times, that a change would spur another court challenge.

Verizon, whose case led to last year’s court ruling, cautioned that reclassification “would be unlikely to withstand appeal.” AT&T was more explicit, saying “we expect to participate in a legal challenge” if the strict rules are implemented.

Wheeler has said he knows the rules must be on firm legal footing: “The big dogs are going to sue regardless of what comes out,” he said in November.

Wheeler signals Internet reclassification

The chairman last week gave the strongest indication to date that his new proposal would rely on reclassifying the Internet. While no specific details have been released, the chairman is expected to circulate the rule early next month and hold a vote on Feb. 26.

“We’re going to propose rules that say that no blocking, no throttling, paid prioritization, all that list of issues, and that there is a yardstick against which behavior should be measured,” Wheeler said last week at the Consumer Electronics Show. “And that yardstick is ‘just and reasonable.’ ”

The “just and reasonable” standard relates to a section of Title II. Wheeler has hinted for months that reclassification could be part of the equation. Last year, it leaked that he was considering a number of hybrid proposals that would partially rely on the authority.