The Next Big Turning Point in the Net Neutrality Debate

January 4, 2015

By Brian Fung via Washington Post

In recent weeks, momentum seems to have been building at the Federal Communications Commission for aggressive net neutrality rules similar to the kind endorsed by President Obama in November. The stronger rules laid out in Obama’s plan would see the FCC treat lightly regulated broadband companies like their more heavily regulated cousins in the telephone industry, in an effort to keep them from speeding up or slowing down Web sites.

Although large Internet providers such as Comcast still strongly oppose that idea, new filings to the FCC suggest a growing realization that aggressive rules may be coming, regardless. This is reflected in an increasingly detailed debate over how far those rules should go — if, in the end, the FCC takes that route. It’s a sign that some in the industry are seriously contemplating the possibility of strong rules, and what to do about them.

On Tuesday, industry associations representing smaller telecom companies and start-ups asked the FCC to apply Title II of the Communications Act to Internet providers. Title II has become a key flash point in the net neutrality debate; advocates say that part of the law, which also governs more traditional telephone service, would give the FCC the strongest possible powers to make sure Internet providers treat all Web traffic equally. Opponents argue Title II is unnecessary and could deter Internet providers from spending money on further network upgrades.

Recognizing that parts of Title II have little to do with the Internet, the industry groups also asked for the FCC to “forbear” from, or waive, all but the most relevant portions of Title II.

Obama and other net neutrality advocates have proposed the same thing, but so far only in generalities. The industry letter, signed by groups including the Computer & Communications Industry Association (CCIA) and the start-up advocacy organization Engine, goes further, recommending that the FCC waive all but three specific sections of Title II.

“This focused and light-touch framework will not unduly burden broadband Internet access service providers and will encourage investment in broadband networks, as well as in the services and applications on those networks,” the groups argued.

Specifically, the letter advocates for applying only those sections of Title II that target unfair discrimination and blocking (Sections 201 and 202 of the law), as well as giving the FCC the power to act on complaints about that behavior (Section 208).

The letter closely mirrors similar proposals in the last month by companies such as Netflix and consumer groups such as Free Press. These filings mark a significant shift from advocating for forbearance in the abstract to highlighting specific sections of Title II that should be kept or discarded as part of the net neutrality rules, said Cathy Sloan, the vice president of government affairs for CCIA, in an interview.

Industry groups representing large ISPs continue to oppose Title II on principle but have also engaged on the forbearance question. In September, the National Cable and Telecommunications Association said “maximum” forbearance of the kind suggested by Netflix and others would still force unacceptable burdens onto broadband providers.

“The Commission has relied on these provisions to adopt a dizzying array of burdensome common-carrier obligations, including price regulation, resale obligations, and unbundling and physical interconnection requirements,” the group wrote. “Given the expansive scope of those statutory provisions, limiting the Commission to only that authority that would do little to quell investors’ fears.”

Last week, Comcast said in a filing that if the FCC does wind up using Title II, it should forbear from all of the sections.

“There is broad consensus on the need for significant forbearance if reclassifying the regulatory status of broadband Internet access service,” Comcast wrote.

We’ll get into what that means in a minute, but the fact that the company is entertaining the idea of forbearance at all, much less offering suggestions for how to do it, is significant. Comcast still believes Title II would be harmful, and the wider point of its filing is to say as much. But the possibility of Title II and forbearance is clearly on the company’s mind, and its latest filing addresses the issue at length.

The filing gets a little technical, but we’ll walk through it line by line:

The Verizon court recognized that Section 706 ‘furnishes the Commission with the requisite affirmative authority’ to adopt the very rules it promulgated in 2010, including outright prohibitions against blocking, discrimination, and paid prioritization, so long as the regulated entities are classified as common carriers.

What Comcast is basically saying here is that, according to three federal judges, the FCC could reinstate its old net neutrality rules, which were published in 2010, if it reclassified ISPs under Title II but did nothing else with that part of the law. In other words, you could just use Title II to brand broadband providers as “common carriers,” just like phone companies, and regulate them using the lighter touch of Section 706.

The Court certainly did not require active regulation under Title II as a prelude for this use of Section 706. The Commission thus need only reclassify and then rely exclusively on Section 706 to adopt net neutrality rules.

Incidentally, this exact approach is what outgoing Rep. Henry A. Waxman (D-Calif.) proposed as a kind of third-way compromise. Skeptics of this strategy, however, say it would be less likely to survive in court than going with a straightforward reclassification; it may be too clever by half.

Even as a wider ideological battle rages over whether to use Title II, a more substantive discussion about which parts of Title II would or wouldn’t apply is taking place. The discussion involves not just the traditional proponents of aggressive rules who view forbearance as a key part of the Title II strategy, but also opponents. That’s an important step forward for the discussion.

Photo: Loïc Dupasquier