FCC Chairman Tom Wheeler today announced some initial steps towards revising the Commission’s open Internet (aka net neutrality) protections in light of the setback of last month’s DC Circuit decision. The Chairman opened a new proceeding asking for general public comment, and said that he intends to seek new rules that would be consistent with the DC Circuit’s opinion. He also announced that the FCC won’t appeal the court’s ruling.
It is good to see the FCC getting on with this important business. Preserving a neutral and nondiscriminatory Internet is crucial for Internet users and innovators alike, so it can’t be left to chance.
Today’s announcement leaves serious open questions, however, about how the FCC intends to approach this issue. The Public Notice says that the new proceeding will “consider the court’s decision and what actions the Commission should take, consistent with our authority under section 706 and all other available sources of Commission authority, in light of the court’s decision.” “All other sources of authority” certainly would seem to include Title II of the Communications Act and the possibility of revisiting the FCC’s prior decisions to classify broadband services as “information services” exempt from Title II. The Chairman’s statement, though, suggests that the FCC’s primary focus may be section 706 authority. The statement did note that Title II remains “on the table” since it “remains a part of the Communications Act,” and that the FCC’s 2010 docket on Title II authority remains officially open. But it is unclear whether or to what extent the FCC plans to make the Title II question part of the announced effort to consider new rules.
It’s certainly ok for the FCC to consider if and how the section 706 authority upheld by the DC Circuit might be used to protect the open Internet. That said, the FCC also needs to be able to be willing to follow that inquiry wherever the legal analysis leads. There are real questions about how well section 706 authority can really work for this purpose, since the DC Circuit struck down its use to impose “common carrier” principles like the no-blocking and nondiscrimination rules contained in the FCC’s Open Internet order – provisions that are the core of meaningful net neutrality protections. For that reason, Title II needs to remain “on the table” in the sense of being a part of the active conversation, not just the subject of an open but largely inactive docket.
In the end, the FCC needs to arrive at a legally stable framework that enables Internet users and innovators to know that they can continue to rely on the Internet operating in an open and evenhanded fashion. A sound legal foundation is essential. There may be a lot of political pressure around this issue, but nobody needs another compromise approach that either proves legally unsustainable or fails to offer meaningful safeguards.