WASHINGTON — Executives from Mozilla have met twice over the past two weeks with Federal Communications Commission general counsel Jonathan Sallet to talk about its proposal to create a hybrid Title II/Section 706 approach to legally sustain new Open Internet rules.
The nature of the meetings suggests that FCC chairman Tom Wheeler may be rethinking his proposal along those lines.
The FCC has signaled that a hybrid approach under the Telecommunications Act of 1996 is among the variations it is considering in the effort to recraft no-blocking and no-unreasonable-discrimination Internet rules thrown out by the U.S. Court of Appeals for the D.C. Circuit earlier this year.
Mozilla, a free online software community that produces the Firefox Web browser, has suggested that the FCC treat the connection between an ISP and a remote edge provider (REP) or to an individual subscriber for an implied fee as a Title II service, or a utility-style common-carrier service. It then suggested that the for-a-fee link between an ISP and the end users of all those REPs be regulated as an information service under Section 706 of the Telecom Act.
Under that regime, Mozilla suggested, the FCC could prevent blocking or throttling in the relationship between ISPs and edge providers under Title II. It could prevent anti-competitive paid priority on the last-mile, consumer-facing side under Section 706, by presuming that paid priority is a violation of the anti-unreasonable discrimination rule — but making it a rebuttable presumption with a high bar.
The D.C. Circuit’s holding that “broadband providers ‘furnish a service to edge providers’ ” left open the opportunity for such a hybrid response by the FCC in recrafting the rules, the Center for Democracy and Technology has argued.
“It is appropriate for the commission to consider this edge-facing service as a distinct offering warranting distinct analysis,” the CDT said, adding that would give the FCC new impetus for applying nondiscrimination the rules to mobile broadband, which it did not do in the previous Open Internet order.
A report in The Wall Street Journal that the FCC was indeed redrafting the rules along the lines of the Mozilla/CDT proposal was not greeted warmly by Free Press, an advocate for regulating the Internet under Title II.
“This Frankenstein proposal is no treat for Internet users, and they shouldn’t be tricked,” said Free Press president Craig Aaron. “No matter how you dress it up, any rules that don’t clearly restore the agency’s authority and prevent specialized fast lanes and paid prioritization aren’t real net neutrality.”
FCC spokesperson Kim Hart said, “The chairman has said that all Title II options are under serious consideration, including proposals by Mozilla, CDT and others.”
Contributing editor John Eggerton has been an editor and/or writer on media regulation, legislation and policy for over four decades, including covering the FCC, FTC, Congress, the major media trade associations, and the federal courts. In addition to Multichannel News and Broadcasting + Cable, his work has appeared in Radio World, TV Technology, TV Fax, This Week in Consumer Electronics, Variety and the Encyclopedia Britannica.
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