The long-awaited, much-debated FCC meeting on net neutrality occurred this morning. As expected, the agency voted 3-2 to put out a tentative proposal and launch a period of public comment for protecting the open nature of the Internet. The actual document isn’t yet available, but here are some initial takeaways based on the statements of the commissioners and the fact sheet that the agency immediately released.
First, Chairman Wheeler made a strong pitch that he “gets” this issue. He said that the prospect of gatekeepers picking online winners and losers is unacceptable, which nicely puts the finger on what is at stake here. He cited his personal experience as an entrepreneur and venture capitalist, suggesting that he understands first-hand why openness matters to innovators. Notably absent was any reference to his earlier flirtation with the idea of two-sided markets.
This is the Start, Not the End
Second, there was a lot of emphasis on how this is the start of a process, with the eventual outcome not yet determined. Chairman Wheeler stressed that while he is proposing to rely on section 706 as the legal basis for the FCC’s action, he remains open to the idea of Title II (the latter widely known as “reclassifying” Internet access). The actual Notice of Proposed Rulemaking (NPRM) will ask questions about Title II, and not just in a vague or general way; in particular, the NPRM will ask the important and practical question of which Title II provisions the FCC should forbear from applying to broadband services, if the agency chooses to reclassify them as Title II services. At this stage, the more detailed the FCC considers how it might proceed under Title II, the better.
The FCC will also provide a relatively long period for public comment: 60 days for initial comments and other 60 days for replies. Often the comment period is just 30 and 30. Statements from the other commissioners who voted to adopt the NPRM seemed to suggest that the timeline and the questions on Title II were expanded in response to their and the public’s reaction to earlier characterizations of the proposal. Commissioner Clyburn noted, “[The NPRM] has changed considerably. . . Feedback up until now has been nothing short of astounding, but the real call to action begins [now].”
At least the starting place of the FCC’s inquiry does not appear to be that paid prioritization is generally ok.
Paid Prioritization Not the Default
Third, contrary to the way the proposal was portrayed in some early accounts, it appears that the NPRM will not affirmatively permit or endorse paid prioritization. Indeed, the NPRM will ask questions about whether paid prioritization should be banned outright. To be clear, there are serious questions about how far down that road the FCC could go, if it continues to rely on section 706, without running into trouble with the courts. But at least the starting place of the FCC’s inquiry does not appear to be that paid prioritization is generally ok.
The meeting offered a few more specific glimpses of what the NPRM will propose. Notably, it will propose an ombudsman to help small entities pursue complaints. Chairman Wheeler indicated that it will largely treat interconnection and peering as a separate issue from net neutrality, except that the transparency proposal may include the idea of disclosing congestion at interconnection points. And the proposal will follow the 2010 rules in suggesting weaker rules for mobile broadband, but will ask the important question of whether any eventual rules should be fully extended to mobile as well. (CDT believes the right answer to that question remains a clear “yes.”)
The Republican commissioners voted against the NPRM, as expected. Commissioner Pai argued that Congress should decide how to proceed. But as a practical matter, Congress is effectively stalemated on this issue, as on so many others. It has previously enacted a statute, and created the FCC as an expert agency, so that it isn’t necessary to come back to Congress every time a communications-related policy issue arises. The entire point of the FCC’s effort in this area is to explore the (admittedly controversial) question of how best to utilize its congressionally granted authority.
Commissioner O’Rielly, meanwhile, echoed the often-heard argument that there is no evidence of a problem. Marvin Ammori offered a good rebuttal to this in an article yesterday. As Chairman Wheeler noted in his statement, the DC Circuit agreed with the FCC’s judgment that broadband carriers may have both the ability and the incentive to discriminate. The risks are real; the FCC is right to launch the serious work of figuring out how best to address them in a legally sustainable manner.