FCC initiates Open Internet rulemaking

At today’s FCC meeting, commissioners voted 3-2 along party lines to open a proceeding to consider rules to protect an open Internet. The vote did not establish the rules, but instead began a process of “... rulemaking seeking public comment on how best to protect and promote an open Internet.”

According to an official FCC release, today’s action, formally a Notice of Proposed Rulemaking, “... poses a broad range of questions to elicit the broadest range of input from everyone impacted by the Internet, from consumers and small businesses to providers and start-ups.”

The FCC will be seeking this input over the next four months, and such input promises to be challenging and often heated.

The rulemaking is important, because there are no rules to protect an open Internet today. Twice – most recently last January – the DC Circuit Court of Appeals rejected the FCC's open internet rules. At that time, the court laid out a framework, based on Section 706 of the Telecommunications Act, for lawful Internet rules. Chairman Wheeler's proposed rule would follow that framework. But in a clear concession to vocal critics, the Commission asks for public comment on reclassification of broadband as telecommunications service under Title II of the Communications Act.

While Chairman Tom Wheeler’s proposal would “allow some ‘commercially reasonable’ deals in which content companies could pay broadband providers to prioritize traffic on their networks,” the Commission seeks comment on how to define what is "commercially reasonable."

According to The New York Times, commercially reasonable “...means that as long as an Internet service provider does not slow down the service that a consumer pays for, the provider can give faster service to a company that pays to get its content to consumers in an unimpeded manner.” But critics fear this would divide the Internet into fast and slow lanes.

In response, Chairman Wheeler emphatically stated that "there is nothing in the proposal that would authorize paid prioritization." He explained that the rules would prevent blocking of content by ISPs, and would ensure that "when consumers buy bandwidth, they get full access to the capacity they are paying for." The proposed rules include a presumption that exclusive contracts that prioritize service to broadband affiliates are unlawful.

Chairman Wheeler understood that his proposal is contentious but assured the meeting that, “I will not allow the national asset of an open Internet to be compromised. I understand this issue in my bones.” He also thanked the thousands of people who have voiced their concerns in recent weeks, noting that this is democracy in action.

Democratic Commissioner Mignon Clyburn, emphasized the importance of public comment going forward: “The real call to action begins after the vote today. This is your opportunity to formally make your points on the record. You have the ear of the entire FCC. The eyes of the world are on all of us.”

Comments on the Open Internet Notice are due July 15, and Reply Comments on September 10.

FCC Launches Broad Rulemaking to Protect and Promote the Open Internet (FCC news release, May 15, 2014) 

Amid protests, FCC proposes new 'net neutrality' rules (Reuters, May 15, 2014)

F.C.C. Votes to Move Ahead on Net Neutrality Plan (New York Times, May 15, 2014)

Fact Sheet: Protecting and Promoting the Open Internet (FCC fact sheet, May 15, 2014)