For most of 2014, Federal Communications Commission Chairman Tom Wheeler performed a balancing act: assuring net neutrality advocates that the FCC would use the full authority granted it by Congress to keep the Internet free and open, while also attempting to assuage the concerns of broadband providers such as Comcast and Verizon, who worried that government intervention would hamper their ability to do business.
Mr. Wheeler was reported to be considering a “hybrid” approach to Internet regulation, in which the FCC would oversee the relationships between broadband providers and content providers such as Netflix, but would not regulate prices or otherwise interfere with broadband companies’ treatment of their customers.
Then, in November, President Obama came out strongly in favor of net neutrality, calling on the FCC to reclassify wired and wireless broadband networks as “common carriers” subject to greater government oversight.
Wheeler and the other four Commissioners found themselves in a tight spot. Should the FCC continue pursuing the more conservative “hybrid” approach to regulation, or should it embrace the President’s call for more robust net neutrality rules?
In a speech given this week at the Consumer Electronics Show (CES) in Las Vegas, Wheeler spoke favorably of reclassifying broadband providers as common carriers under Title II of the Communications Act, saying that this would allow for “just and reasonable” regulation with “the best protections” for consumers. The FCC will vote on final regulations next month, and reporters say Wheeler’s CES speech is a strong indication that the Commission is leaning in favor of supporting the President’s stance on net neutrality.
In 2010, the Commission made an unsuccessful move toward net neutrality by promulgating the Open Internet Rules, which disallowed broadband providers from blocking or slowing the delivery of certain kinds of content, and required them to be transparent about their network management practices. Verizon protested, and the D.C. Circuit Court struck down most of the rules last year, saying the FCC hadn’t proven that it had the authority to enforce them.
Things will probably be different this time, if the FCC goes ahead with its strong approach. In 2010, the Commission stopped short of classifying broadband providers as common carriers, relying instead on its more general authority under the Communications Act. That wasn’t good enough for the Court, which criticized the FCC for trying to regulate broadband providers as though they were Title II common carriers. If, this time around, the FCC actually does reclassify these providers, it’s likely that a court would uphold its ability to impose strong net neutrality rules.
Wheeler will unveil his proposal for Internet regulation on February 5, and the FCC will vote on the final rules at the end of that month.