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‘Open’ Season on Net Neutrality

WASHINGTON — It’s not looking like a summer of love for the FCC and network neutrality. 

A divided Federal Communications Commission approved a new open Internet rules proposal last week, but just barely, signaling months of lobbying to come on the final rules as FCC chairman Tom Wheeler said he welcomed input on an item that he as much as conceded is a moving target.

Wheeler said the new rules would protect network openness and that speed — as in getting the rules in place quickly — is of the essence, as no regulations exist at present. Commissioners from both parties had advised delaying the vote.

The proposed rules would prevent Internetservice providers from blocking legal content; would allow “commercially reasonable” discrimination on a case-by-case basis; would increase the amount of information ISPs must provide on how they manage their networks; and would create an “ombudsperson” position to help with complaints about possible commercially unreasonable discrimination.

Protesters outside the FCC last week were certainly not assuaged by the rules, toughened in the waning days, if emails from organizers were any indication. The agency can expect more pushback over the coming months as it decides exactly how to proceed.

The May 15 vote was on a proposal and not on final rules, as repeatedly asserted by Wheeler and fellow Democrat Mignon Clyburn, the only other commissioner to vote unreservedly for the item.

Under the proposal, the FCC will use its existing authority under Section 706 of the Telecommunications Act of 1996 to retain the scope of the rules. That means wireless broadband isn’t subject to the same discrimination rules, though the proposal asks if it should be. A 2010 no-blocking rule remains essentially unchanged, with the clarification that edge providers must also be provided with a minimum baseline of service.

The FCC will use its authority under Section 706 to apply a “commercially reasonable standard” to discrimination not prevented outright by the blocking and minimum- service guarantee, but Wheeler signaled that he thinks paid priority for Internet content providers isn’t commercially reasonable. The FCC’s appointed “ombudsperson” will investigate and advocate for those who think they are being unreasonably discriminated against.

Commissioners seemed as divided over the rules as stakeholders and advocates were over their impact on the Internet industry (see Cover Story). Cable operators and other Internet-service providers were arguing for what they called balanced rules — essentially ones not based on Title II of the Communications Act, which would make Internet service a “common carrier” service akin to telephone service. Advocates of Title II status said reclassification under common-carrier style regulations was the only way to guarantee openness.

Wheeler tried to assure network-neutrality advocates that the new rules would not authorize paid priority. He hammered cable operators again, as he had last month at The Cable Show in Los Angeles, saying they had the motive to block and degrade unless he got rules in place where currently none exist.

He even said that, as an entrepreneur, he had products and services excluded from “closed cable systems,” though he did not elaborate.

Wheeler did say that those suggesting the new rules were creating fast and slow lanes or necessarily allowing some Internet content providers to pay for priority access were just plain wrong (see Access). He pounded the lectern repeatedly, as he is wont to do, to emphasize his points.

There has been a huge misconception, he told reporters last week.

“This proposal does not provide or mandate paid prioritization,” Wheeler said. “Nothing in this [item] authorizes a fast lane. We ask questions, but do not jump to conclusions.”

But he did not seem to have much luck convincing the MoveOn and Common Cause crowd, indicating the proposed rules will probably generate a lot of comment.

The vote was 3-2, with Republicans Michael O’Rielly and Ajit Pai vigorously dissenting and Democrat Jessica Rosenworcel only “concurring” to the item — that is, offering qualified support. Rosenworcel had wanted the vote delayed, and said it had been too fast to be fair.

The meeting was occasionally interrupted by protestors shouting for Title II, as the Republicans complained about not getting to see the revised draft until late in the game. Having signaled their dissent early on, they got second dibs on the draft after a preview for the Democratic commissioners.

The vote had hardly been recorded when headlines such as “FCC Vote to Kill Net Neutrality,” and “Kiss the Internet Goodbye?” began slipping over the electronic transom.

Wheeler insisted the rules were a work in progress, would get plenty of input (120 days for comment) that he welcomed, and that they could change, including shifting to Title II as a legal justification.

As FCC staffers vowed to take a day off and ISPs kept hammering away at Title II, MoveOn was using the pushback to raise some money.

“Can you chip in $3 today to ramp up our campaign to save the Internet?,” it asked would-be donors in an email.

What Is Network Neutrality?

WASHINGTON — Defining network neutrality is tough. Just ask the guy who coined the term, Columbia University media law Professor Tim Wu.

He attempts to decipher the term for the masses on his website, but the definition is still a bit of a head-scratcher.

“Network neutrality is best defined as a network design principle. The idea is that a maximally useful public information network aspires to treat all content, sites, and platforms equally. This allows the network to carry every form of information and support every kind of application. The principle suggests that information networks are often more valuable when they are less specialized —when they are a platform for multiple uses, present and future. (Note that this doesn’t suggest every network has to be neutral to be useful. Discriminatory, private networks can be extremely useful for other purposes. What the principle suggests that there is such a thing as a neutral public network, which has a particular value that depends on its neutral nature). “