Mozilla has drafted an alternative to the FCC's proposal to restore Net neutrality, which would require the commission to take a new approach to defining broadband services.
In a filing Monday to the Federal Communications Commission, the developer of the Firefox browser and operating system suggested the FCC start from scratch in terms of defining how to regulate broadband services. Instead of thinking of an Internet service as a connection between a broadband provider and a subscriber, the agency needs to recognize that there is also a third party involved in the relationship, Mozilla said in a blog post. Subscribers are using that Internet service to connect to websites, apps, and content providers, Mozilla noted.
Mozilla is proposing the FCC create a new definition for these relationships by calling them "remote delivery services." As such, Mozilla says this should be regulated like a Title II communication service under the Communications Act.
"Our petition asks the FCC to adopt a modern understanding of the Internet in a way to reach Title II directly and quickly," said Chris Riley, senior policy engineer at Mozilla. "This will also ensure that the FCC can adopt meaningful Net neutrality rules with no blocking and no paid prioritization that will stand up in court."
Mozilla's proposal is a new twist on an old idea. Other Net neutrality supporters have also called on the FCC to "reclassify" broadband traffic under Title II of the Communications Act. These legal gymnastics will make it possible for "common carrier" rules to apply to Net neutrality regulation. As a result, supporters of this approach say it would ensure that broadband providers could not slow or block traffic and would ensure that these providers couldn't offer a so-called "fast lane" of service. Proponents of reclassification also say doing so would also put the FCC on firmer legal ground if it is once again challenged in court.
But FCC Chairman Tom Wheeler has already stated that he doesn't want to jump right to "reclassification." He said in a recent speech to the cable industry that he is still considering the possibility of Title II reclassification, but he said he believes the FCC can still achieve the goals of the open Internet while keeping the current classification of broadband services.
"Our proposed course of action builds on the court's strong legal justification for regulation that guarantees every user the ability to effectively use the Internet," he said at the cable industry event last week in Los Angeles. "We are beyond the question of the scope of the FCC's authority; the court has decided that. Knowing that authority, we now must move expeditiously to make it manifest."
The U.S. Court of Appeals for the District of Columbia in January threw out the FCC's Net neutrality rules on a legal technicality. It said that since the FCC has not classified broadband as a service that is regulated under Title II, it could not use telephone-style common carrier regulation to justify its rules. Wheeler has said that even though the court threw out the existing rules, he believes it upheld the FCC's authority to use section 706 of the Communications Act to impose revised rules. He also said he believes it is unnecessary to reclassify the rules in order to impose strong regulation.
Two weeks ago, Wheeler began discussing his proposal, which he claims will reinstate the old rules as they had been written. But a firestorm of protest erupted as Net neutrality supporters criticized the new proposed rules as being too lenient. They accused Wheeler of endorsing the idea of allowing broadband providers to charge content owners for priority access to their networks. Even though he has denied that the FCC would approve rules that allowed for such a "fast lane," critics have continued to bash the proposal.
Mozilla and other Net neutrality supporters calling for the FCC to reclassify broadband traffic say that the FCC's approach is too weak. Not only does it not protect the Internet's openness, but they fear it will also be struck down again in court. The agency has already been sued twice in court over the Net neutrality issue. And both times, the FCC has lost.
"The FCC has moved the goal post in 20 yards and given themselves touchdown," Mozilla's Riley said. "But that's not where the goal post is."
Riley added that Mozilla's proposal provides a simpler and more logical path to that touchdown, which he believes will not be overturned in court if it's challenged again.
Reclassifying broadband as a Title II service or creating a brand new category of service as Mozilla has suggested are approaches that will likely be met with much resistance from broadband providers, such as AT&T, Comcast, and Verizon. These companies fought off earlier attempts by the previous FCC chairman to reclassify broadband traffic and impose telephony-style regulation.
Mozilla hopes that the FCC will open its proposal up for comment alongside the proposal submitted by the chairman. The chairman's proposal will be voted on by the entire commission and then opened for public comment at its May 15 meeting.