The politically charged battle over Net neutrality has now officially been opened for public debate at the Federal Communications Commission.
On Thursday, the FCC voted 3-to-2 to open Chairman Tom Wheeler's proposal up for public comment. Wheeler's proposal, which was leaked last month and has ignited a firestorm of protest among consumer advocates, has been revised since its original inception and will officially start the public debate on reinstating rules to protect the open Internet, which were thrown out by a federal appeals court in January.
Wheeler, who has been criticized for capitulating to big broadband companies by allowing a so-called fast lane for priority traffic on the Internet as part of his proposal, vehemently defended his proposal and tried once again to set the record straight on what it will and will not do. And he made a personal appeal stating that as an entrepreneur and venture capitalist, he knew how it felt to be excluded from closed networks.
"I will not allow the national asset of an open Internet to be compromised," he said. "I understand this issue in my bones. I've got scars from when my companies were denied access in the pre-Internet days."
He emphasized once again that the Internet would not be allowed to be divided into the have and have nots. And during a press conference with reporters he emphasized that there is nothing in the proposal that authorizes or proposes a "fast lane" for paid priority services.
"I will say it again, there is nothing in the proposal that authorizes fast lanes on the Internet," the chairman said. "It simply asks questions, such as should there be a ban on paid prioritization. But there is nothing in the rule that authorizes it."
Net neutrality is the principle that Internet service providers and governments should treat all Internet traffic the same. This means that Internet service providers should not block or slow down traffic on their local broadband networks based on individual users or the type of traffic those users are accessing or by the type of service that is sending the content.
While the two Democratic commissioners Mignon Clyburn and Jessica Rosenworcel each supported the item, they admitted that they weren't entirely happy with the firestorm that erupted around the chairman's approach.
Commissioner Rosenworcel said she would have done things differently. Last week, Rosenworcel had asked the chairman to delay the vote to open the proposal up to the public.
"I support Net neutrality," she said in her statement. "But I believe the process is flawed. I would have preferred a delay. I think we moved too fast."
During the meeting, Republican Commissioners Ajit Pai and Michael O'Reilly, who not surprisingly each voted against the order, expressed their concerns with respect to the proposal.
Commissioner O'Reilly, the newest member of the commission, said he doesn't think the FCC has the authority to impose these rules.
"The premise for imposing Net neutrality rules is fundamentally flawed and rests on a faulty foundation of make-believe statutory authority," he said. "I have serious concerns that this ill-advised item will create damaging uncertainty and head the Commission down a slippery slope of regulation."
Commissioner Pai said that while he believes in ensuring an open Internet, he thinks it is not the FCC's place to impose such regulation. Instead, he said the FCC should wait for Congress to take action, especially since the FCC's previous two attempts to enact regulation have not stood up to two previous court challenges.
He echoed Democratic Commissioner Rosenworcel's sentiments that a vote on the proposal was premature.
FCC Net neutrality rule making: take two
This isn't the FCC's first time adopting rules to protect the open Internet. In 2010, the FCC adopted regulation that was later challenged in court by Verizon. The FCC lost the lawsuit, and the rules, which many in the digital advocacy world believed were too weak anyway, were thrown out on a legal technicality.
The new rules proposed by Chairman Wheeler are a way to quickly get Net neutrality protections in place since currently none are in place to protect openness on the Internet.
The good news for the FCC is that even though the court threw out its original rules on a legal technicality, it agreed with the agency that some regulation is needed to deter broadband providers that might otherwise be tempted to abuse their control of the last-mile Internet network.
Meanwhile, advocates, who were disappointed in the FCC's previous attempt to enact Net neutrality protections, have viewed the agency's legal loss as an opportunity for it to adopt even stronger regulations to protect the Internet. Specifically, they want the FCC to reclassify broadband as a Title II service under the Telecommunications Act, which they believe will give it authority to regulate these networks like a utility.
Broadband providers say such a move would be a mistake. They argue changing the classification of broadband would subject their networks to regulation similar to the old telephone network, which they claim would stifle innovation. Major companies, which have already signed their own letter to the FCC, are already preparing to mount a massive lobbying campaign and will surely go back to court if reclassification is adopted.
Wheeler said that even though he believes that Section 706 of the Telecommunications Act provides enough authority for the FCC to ensure these proposed rules stand up to future legal challenges, he said that it is important to have a discussion of whether some other type regulatory authority might be better suited for protecting the Internet. As such, the FCC will consider reclassifying broadband traffic as a Title II common carrier service as it's defined in the Telecom Act, he said.
What about the 'fast lane?'
But the real issue that has stoked the ire of politicians, large technology companies, and even some celebrities is not just the legal intricacies of this debate, but the threat that under the newly proposed rules, broadband providers could charge content companies a fee for priority access to the network. For instance, Netflix or Amazon could pay extra to ensure their traffic is delivered more expeditiously for a better quality of service.
So far, only the FCC commissioners and the staff at the agency have actually read the Chairman's proposal. And it could be a day or so before the order is made available to the public. But the commission outlined the basics of what will be included in the proposal.
Specifically, the chairman emphasized on several occasions that the proposal is not giving the green light to broadband operators to start selling priority services on their networks.
"The potential for there to be some kind of a fast lane, available to only a few, has many people concerned," the Chairman said. "Personally, I don't like the idea of the Internet divided between haves and have-nots. I will work to see that that does not happen."
A key element to preventing such paid priority lanes will be the "no-blocking" rule, which will prohibit broadband providers from blocking traffic or not providing a minimum amount of bandwidth. This means that a service provider can't slow a service to such a level that video is unwatchable. But Wheeler also emphasized that this rule would also ensure that consumers continue to get the network speeds they are paying for.
He said that the "speed and quality of the connections the consumer purchases must be unaffected by the content he or she is using."
He also said the enhanced transparency rule will not only require broadband providers to inform consumers of how they are managing their traffic, but it will allow for other network operators to report to the FCC companies that are blocking or slowing down traffic.
But another aspect of the "no-blocking" rule that still remains controversial is wording that will still allow for "commercially reasonable" practices. Critics have come to believe that this is the crux of the "paid prioritization" allowance. Wheeler offered a few examples of what he interprets as commercially reasonable. He said that priority access for 911 services is one example as is government officials access to the public safety network during a crisis. And he said that not allowing customers access to their full broadband speed would be a practice that would be considered commercially unreasonable.
The Chairman also said that as part of the proposal the FCC would add an ombudsman to the FCC who would hear consumer complaints and advocate on behalf of those consumers to resolve reported misconduct by broadband providers.
Protests are working
This notion of an Internet fast lane is not a new concern with regard to FCC Net neutrality regulation. Open Internet proponents were worried that the 2010 rules might also allow for such services. But because the prospect of "commercial services" were highlighted more in the original leaked Wheeler proposal, or perhaps because digital advocates focused on it more as a talking point, it has become a lightning rod for this issue, attracting the attention of not only large technology companies like Google, Facebook, and Amazon, but also celebrities, including musicians Eddie Vedder and Michael Stipe, as well as director Oliver Stone and actor Mark Ruffalo, who have signed a letter sent to the FCC this week in support of stronger Net neutrality regulation.
The public outcry has gotten the attention of congressional leaders, too. US Senators Al Franken (D-Minn.) and Elizabeth Warren (D-Mass.), along with nine of their colleagues sent a letter the FCC demanding stronger rules to ensure there is no Internet fast lane.
Chairman Wheeler has responded to the political and public pressure. During the meeting, he applauded the efforts of the dozens of protesters gathered outside the FCC, some of whom had been camped out since May 7.
"Those who have been expressing themselves will soon see from our proposal that they have been heard," he said. "And we look forward to further input."
He said the founding fathers of the country would be smiling down on the protesters for exercising their rights to assemble and make their positions known to those in power. And he thanked them for getting the public energized over such an important issue.
Still, the chairman was not about to allow the protesters to dominate the meeting. And before things kicked off, three protesters were removed after jumping up and shouting loudly at the commissioners to protect the Internet. One even accused the FCC of destroying the First Amendment.
In addition to incorporating the concerns from the public regarding paid prioritization and the reclassification of broadband into the current proposal, the FCC has also opened up for comment a second proposal drafted by Mozilla, which also suggests reclassification. Mozilla proposes an alternative route to establishing broadband as a common carrier.
The full proposal will be published in the Federal Register within a few days. Then the FCC Notice of Proposed Rule Making, or NPRM, will be open for public comment for 60 days until July 15. After that period, it will be kept open another 57 days until September 10 for reply comments. In an effort to handle the expected flood of response, the FCC has set up a new online "inbox" to take comments.
Update, 1:00 pm PT: This story was updated with additional information from the FCC meeting.