By Jenny Paul, Marc Martin, and Marty Stern
UPDATE 2/24/14: The Federal Communications Commission announced last week that it will not appeal the D.C. Circuit’s net neutrality ruling and instead is poised to open a new rulemaking proceeding to write different rules, relying on the D.C Circuit’s finding that the Communications Act of 1934, as amended, grants the commission limited authority to impose general “open Internet” regulations on broadband providers.
In a statement, Chairman Tom Wheeler said that the Commission will work to write rules within its authority that would fulfill the goals of the anti-blocking and anti-discrimination provisions that the D.C. Circuit struck down in January. Wheeler said the new rules should ensure that edge providers are not unfairly blocked, explicitly or implicitly, from reaching consumers. To fulfill its anti-discrimination goal, he said, the Commission will consider (1) setting an enforceable legal standard that provides guidance and predictability to edge providers, consumers, and broadband providers; (2) evaluating on a case-by-case basis whether that standard is met; and (3) identifying key behaviors by broadband providers that the Commission would view with particular skepticism.
While the opening of the new proceeding means that the Commission is not moving to reclassify broadband and regulate it as a common carrier service, Wheeler made clear that he is not taking that option off the table just yet. “As the Court of Appeals noted, 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 in a statement.
UPDATE 02/04/14: Days after the D.C. Circuit struck down the bulk of the Commission’s net neutrality rules, a group of Democrats in the House of Representatives have introduced a bill that would restore the rules the court threw out. The bill, titled the “Open Internet Preservation Act of 2014,” would reinstate the rules until the Commission takes final action in its Open Internet proceedings. Sen. Ed Markey (D-Mass.) plans to introduce a companion bill in the Senate.
While the bill likely won’t get very far in the House of Representatives, which in 2011 passed a resolution opposing the Commission’s net neutrality rules, the introduction alone may signal to FCC Chairman Tom Wheeler that Democrats in the House and Senate would back Commission action that would more aggressively regulate broadband providers.
The D.C. Circuit struck a blow to the Federal Communications Commission’s net neutrality rules last week, upholding the Commission’s jurisdiction to regulate broadband service providers’ network management practices, but striking down anti-discrimination and anti-blocking provisions that were designed to ensure equal treatment of Internet traffic by broadband providers.
The court ruled that the Communications Act of 1934, as amended, grants the Commission limited authority to impose general “open Internet” regulations on broadband providers. The court found that the authority granted to the Commission is restricted by statute, first by Congress’s grant to the Commission of limited subject matter jurisdiction over only interstate and foreign communication by wire and radio, and second by the statutory directive that the Commission’s regulations in this arena must be designed to encourage the deployment of advanced telecommunications capability to all Americans on a reasonable and timely basis.
Relying on this authority, the Commission had promulgated specific rules — anti-blocking and disclosure requirements which applied to both fixed and mobile broadband providers, as well as a set of anti-discrimination rules that applied only to fixed broadband providers. The D.C. Circuit found, however, that the Commission’s specific anti-discrimination and anti-blocking rulesamounted to per se common carrier obligations that could not be applied to broadband providers because the Commission has not classified broadband providers as common carriers.
It upheld the Commission’s disclosure requirements for broadband providers, another aspect of the net neutrality rules that required both fixed and mobile broadband providers to publicly disclose the network management practices, performance, and commercial terms of their broadband services.
“[T]he court found that the FCC could not impose last century’s common carriage requirements on the Internet, and struck down rules that limited the ability of broadband providers to offer new and innovative services to their customers,” Verizon, the appellant, said in a statement. “We look forward to working with the FCC and Congress to keep the Internet a hub of innovation without the need for unnecessary new regulations that seek to manage the explosive dynamism of the Internet.”
The Commission’s next steps, and the future of net neutrality more broadly, remain unclear. “My intention is to employ any necessary means among the wide variety of them given to the FCC by the Congress to sustain our jurisdiction,” FCC Chairman Tom Wheeler said on his blog. “That the jurisdiction exists is not debatable. What path we take to assure it will be a function of circumstance, but whether we secure it should not be a source of doubt.”
In a separate release, the Chairman also raised the possibility of appealing the D.C. Circuit ruling to the Supreme Court. The Commission could also pursue other regulatory options, such as proposing new rules that are more mindful of broadband’s status as a non-common carrier or pursuing a case-by-case enforcement approach.
Some net neutrality advocates, however, want the FCC to act more aggressively and reclassify broadband as a common carrier service. “Internet service providers are common carriers, and as such they need government oversight and regulation,” Susan Crawford, a visiting professor at Harvard Law School, argued. But some industry commentators believe that the Commission might be unwilling to wage the contentious battle that reclassification would spark.