Wheeler Brings Down Net Neutrality Hammer

WASHINGTON—The chairman of the Federal Communications Commission followed through on marching orders from the president to redefine broadband networks, essentially as utilities. Chairman Tom Wheeler proposed reclassifying both wired and wireless broadband networks under Title II of the ’96 Telecom Act, which would allow the agency to impose network neutrality rules.

“Using this authority, I am submitting to my colleagues the strongest open Internet protections ever proposed by the FCC,” Wheeler wrote in an op-ed at Wired. “These enforceable, bright-line rules will ban paid prioritization, and the blocking and throttling of lawful content and services. I propose to fully apply—for the first time ever—those bright-line rules to mobile broadband.”

The “bright lines” include no blocking, throttling or fast lanes (think toll roads)—the basic tenets of network neutrality, something the commission has been trying to implement since 2004, when then FCC Chairman Michael Powell introduced the “Four Freedoms” of network neutrality. These principles were later adopted as a policy statement that the FCC leveraged in 2008 to order Comcast to stop throttling the bit load consumed by BitTorrent. Comcast sued in federal court and won in early 2010. The commission codified network neutrality rules later that same year, prompting litigation by Verizon. Verizon prevailed in January of 2014, sending the FCC back to the drawing board.

Chairman Wheeler responded four months later with a proposed rulemaking to allow fast lanes, or paid prioritizaion, which set off a backlash of opposition. As many as 4 million comments were filed on the docket by last November, when President Obama released a YouTube video calling for Title II reclassification of broadband access.

Broadband access currently is considered a Title I “information service” that the FCC can regulate “reasonably ancillary to the effective performance” of its responsibilities. Title II covers networks as “a means the offering of telecommunications for a fee directly to the public, or to such classes of users as to be effectively available directly to the public, regardless of the facilities used.”

Title II rules were crafted for phone lines and applied to common carriers. Under Title II, the FCC requires common carriers to provide service free of “unjust or unreasonable discrimination in charges, practices, classifications, regulations, facilities, or services.”

Wheeler, a former cable and telecom executive, initially resisted Obama’s importunity, but relented this week.

Wheeler’s proposal would reclassify retail broadband access offered by cable, phone and wireless providers as a Title II service. Wireless broadband is a new twist, since it wasn’t as prevalent when the network neutrality debate started. Now, however, the FCC notes that 55 percent of Internet traffic is carried over wireless networks.

“This proposal extends protection to consumers no matter how they access the Internet, whether they on their desktop computer or their mobile devices,” the commission said.

The proposal will be put to a full commission vote during the Feb. 26 open meeting.

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