Amid political pressure, FCC to propose Net neutrality fix

As politicians put on the pressure, Federal Communications Commission chairman Tom Wheeler says he's about to reveal his plan for keeping the Internet open for everyone.

On Monday during a speech at the University of Colorado Law School, Wheeler said that the FCC, which suffered a legal defeat last month when a federal appeals court threw out its Open Internet rules, is working on a plan that will re-instate Net neutrality protections. Wheeler indicated that the agency was encouraged by the court's decision, which rejected the regulation on a legal technicality, but upheld the agency's authority to regulate broadband networks to encourage adoption and investment. He said details would be made public soon.

"In its Verizon v. FCC decision, the Court of Appeals invited the Commission to act to preserve a free and open Internet," he said. "I accept that invitation, and in the coming days, I will be outlining how I propose to proceed."

The plan can't come soon enough for Democrats in Congress, who have been pushing for action. On Tuesday, five leading Democrats in the US Senate sent a letter to the FCC. Sens. Al Franken (D-Minn.), Ron Wyden (D-Ore.), Jeff Merkley (D-Ore.), Ed Markey (D-Mass.), and Richard Blumenthal (D-Conn.) urged the agency "to act with expediency." They went onto say that, "Consumers, entrepreneurs and innovators deserve to know their right to view or use the content and services of their choice online will be protected."

This comes on the heels of legislation drafted by Democrats in both the House of Representatives and the Senate that would temporarily re-instate the FCC's Net neutrality rules until the agency can craft its own solution that will stand up to judicial scrutiny in the courts.

The FCC's move
The big question now is how the FCC will impose such rules. In January, the DC Circuit Court of Appeals found that the FCC has general authority to regulate broadband networks and to impose rules, such as the Open Internet rules adopted in 2010, under the Telecommunications Act of 1996. But the court also found that the FCC had based these specific rules on flawed legal logic. Specifically, the court said that the FCC could not regulate broadband providers using the same rules that apply to phone companies.

From a legal standpoint, the easiest solution would be to reclassify broadband providers as so-called "common carriers," which would put them under the same regulatory framework as the traditional phone network.

While simply changing the classification of broadband sounds like an easy fix, in reality it's not. This type of change would likely ignite a firestorm of protest among broadband providers, such as Verizon, AT&T, Comcast, and others. These companies argue that such a reclassification would essentially change the regulatory framework of all things associated with the Internet.

Another option to fix this problem for the FCC is if Congress revises the Communications Act to spell out the specifics of Net neutrality. But in his speech on Monday, Wheeler acknowledged that although such a reform is necessary, it will take years. In fact, the 1996 re-write of the law took eight years. Wheeler also added that even a change in the law is not likely to be enough. He said that as soon as a new statute is adopted, it will likely be outdated, leaving the FCC once again to interpret the statute and exert its authority to ensure that public interest is protected.

And he acknowledged that something else must be done now.

"We can't just kick the can down the road," he said. "We have an obligation to act now with the principles that have been transmitted to us in the form of statutes, judicial and regulatory precedents, scholarship, and experience."

Exactly how Wheeler will navigate through the legal and political obstacles to protect Net neutrality is what is still unknown. Regardless, the Democratic Senators said in their letter that they want to see something from the FCC soon.

"We urge you to quickly adopt enforceable rules to prevent the blocking and discrimination of Internet traffic," the letter states. "These rules must stand on strong legal footing to withstand judicial scrutiny. Without such rules in place, Internet service providers are prone to act as gatekeepers of the Internet, controlling access by blocking or throttling certain content and thereby limiting the opportunities for innovation, speech, and commerce."