It is a sad state of affairs when a federal agency continues to waste taxpayer dollars on a concept that failed, not once but twice to pass muster with the court. On May 15, 2014, Federal Communications Commission (FCC) Chairman Tom Wheeler brought up for a vote a notice of proposed rulemaking (NPRM) that has the potential to increase government control over the Internet. On a party-line vote, the proposal was passed.
As noted, the FCC has tried to impose increased government regulations over the Internet before. Previous attempts by the agency to take control of the Internet included an attempt in 2010 to sanction Comcast for its Internet traffic management process, and again in 2011 to impose the Open Internet Order on the Internet. Both of these efforts were overturned by the United States Court of Appeals for the District of Columbia Circuit (D.C. Circuit Court), which ruled in the first instance that the FCC had no authority to require broadband providers to give equal treatment to all Internet content flowing through their networks; and, on January 14, 2014, the D.C. Circuit Court ruled that, while the FCC has some authority to regulate broadband services under Section 706 of the Communications Act, the FCC had overstepped its bounds when it subjected Internet providers to treatment as Title II common carriers through its anti-discrimination and anti-blocking rules.
The NPRM was approved by a vote of 3-2, with the Republicans on the commission voting against the proposal. Using Section 706 as the source of its authority to regulate the Internet, the NPRM includes a framework that retains the definitions and scope of the most recent Open Internet Order; enhances the transparency rules upheld by the D.C. Circuit Court; adopts no-blocking rules and added protections for edge providers; requires the creation of enforceable standards of reasonable practices; and creates a multi-faceted dispute resolution procedures. The proposed rule also seeks comments from the public whether Section 706 is the best authority to use or if the Internet should be reclassified under Title II of the Communications Act. The FCC will be collecting public comments on the proposed rule over the next four months, with initial comments due on July 15, 2014, and reply comments due by September 10, 2014.
It is curious that the FCC Chairman is in such a rush to achieve net neutrality, given that the House Energy and Commerce Committee has already begun the process of reviewing the existing Communications Act in order to modernize the law to allow for new technological advances. During the discussion of the proposed rulemaking, Commissioner Jessica Rosenworcel questioned the rush by the Chairman to move the proposed rules forward, and suggested that the FCC needed more time to properly evaluate the proposal. Commissioner Ajit Pai also questioned why the FCC, an organization made up of five unelected officials, was taking up such a controversial issue instead of allowing Congress to determine the best path for the future of the Internet.
In moving forward the proposed rules, the FCC is seeking to solve alleged market failures when none exist. Reclassifying the Internet under Title II would only serve to hamper the innovative technology sector that the Chairman claims he wishes to protect by placing antiquated regulatory schemes originally developed for “plain old telephone service” on a thriving, innovative, modern industry. It is far better for the FCC to hold on any further action until Congress has had an opportunity to fully explore the options for modernizing telecommunications law.
Apparently, the FCC Chairman believes that three times is the charm when it comes to the government taking control of the Internet. Instead of wasting taxpayer dollars worrying about fixing what isn’t broken, perhaps it is time for Chairman Wheeler to rethink his priorities for the FCC. There are more critical issues upon which the FCC should be focusing its energies: these include ensuring a fair spectrum auction, overseeing the IP transition, and helping to create a first responder network, before imposing additional unnecessary rules on the Internet.