Reaction came swiftly, including from unhappy Republican commissioners, to FCC chairman Tom Wheeler's announcement Wednesday that he was launching an effort to restore the FCC's no-blocking and non-discrimination rules using its authority to promote broadband competition, rather than reclassifying ISPs as common carriers (though he will keep that option open, as did his predecessor).
Republican commissioners Ajit Pai and Michael O'Rielly, no fans of the old rules, didn't support the proposal to reinstate them using a different legal underpinning.
"Today’s announcement reminds me of the movie Groundhog Day,” wrote Pai. “In the wake of a court defeat, an FCC chairman floats a plan for rules regulating Internet service providers’ network management practices instead of seeking guidance from Congress, all while the specter of Title II reclassification hovers ominously in the background. I am skeptical that this effort will end any differently from the last."
“I am deeply concerned by the announcement that the FCC will begin considering new ways to regulate the Internet," said O'Rielly. "As I have said before, my view is that section 706 does not provide any affirmative regulatory authority. We should all fear that this provision ultimately may be used not just to regulate broadband providers, but eventually edge providers."
The D.C. appeals court that overturned the anti-blocking and nondiscrimination portions of the FCC's 2009 Open Internet order did concede that ISP's have the ability and incentive to discriminate against edge providers in the provision of competing data or video services, and the power to regulate broadband in the interests of deployment if it concludes such discrimination would discourage that deployment.
"It appears that the FCC is tilting at windmills here," said O'Rielly. "Instead of fostering investment and innovation through deregulation, the FCC will be devoting its resources to adopting new rules without any evidence that consumers are unable to access the content of their choice.”
Democratic Commissioner Jessica Rosenworcel was on board with the plan.
“I support an open Internet. That is why I am pleased that the D.C. Circuit recognized the Commission’s authority to encourage the deployment of broadband infrastructure," she said. "I also support the actions Chairman Wheeler has announced today in light of this court decision. I look forward to working with my colleagues to develop policies that ensure the Internet continues to drive innovation, experimentation, and economic growth.”
Rep. Henry Waxman (D.-Calif.), ranking member of the House Energy & Commerce Committee, clearly must have gotten a heads up on the announcement. Within minutes, his office had released a statement in support.
“I welcome FCC chairman Wheeler's announcement today that the commission will reinstate rules to preserve a free and open Internet," he said. "Chairman Wheeler is committed to achieving the same goal administratively that the bill I introduced earlier this month with Rep. Eshoo and Sen. Markey would achieve legislatively: stopping broadband providers from using their market power to block or interfere with the content consumers want to access. I expect the FCC to move expeditiously in readopting the rules and grounding them on a strong legal footing. I look forward to working with the FCC to ensure that consumers, innovators, and network operators benefit from the certainty of enforceable net neutrality rules of the road."
Wheeler has signaled he is looking for a new rule proposal by late spring or early summer.
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