The Federal Communications Commission said on Wednesday it won’t contest a federal court ruling that struck down net neutrality, the FCC’s power to bar Internet service providers from discriminating against websites. But it will try a different tactic to preserve it.
“In its Verizon v. FCC decision, the United States Court of Appeals for the District of Columbia Circuit invited the Commission to act to preserve a free and open Internet. I intend to accept that invitation by proposing rules that will meet the court’s test for preventing improper blocking of and discrimination among Internet traffic, ensuring genuine transparency in how Internet Service Providers manage traffic, and enhancing competition,” Wheeler said.
The appeals court said in January that the FCC couldn’t impose net neutrality policies on a business it had classified as an information service like Verizon, and not a common carrier service such as a dedicated telecommunications provider.
In his statement, Wheeler said the FCC won’t contest the appeals court decision, and it also won’t attempt, at least for now, to have Verizon and other Internet service providers reclassified as common carriers until its Title II authority.
“The D.C. Circuit recognized the importance of the Open Internet Order’s ban on blocking Internet traffic, but ruled that the Commission had not provided sufficient legal rationale for its existence. We will carefully consider how, consistent with the court opinion, we can ensure that edge providers are not unfairly blocked, explicitly or implicitly, from reaching consumers, as well as ensuring that consumers can continue to access any lawful content and services they choose,” Wheeler said.
Edge providers include companies like Netflix and Google’s YouTube service, which consume huge chucks of Internet bandwidth without compensating Internet service providers.
“We will carefully consider how Section 706 might be used to protect and promote an Open Internet consistent with the D.C. Circuit’s opinion and its earlier affirmance of our Data Roaming Order,” Wheeler said.
Section 706 is part of the 1996 Telecommunications Act, and it allows the FCC to determine if advanced telecommunications “capability” is made available in a reasonable and timely manner to all Americans. (Comcast among others supports the use of Section 706 to ensure some form of net neutrality, even though Comcast agreed to net neutrality rules as part of its acquisition of NBC.)
The Verizon v. FCC Net Neutrality case has been widely watched since 2010, when then-FCC commissioner Julius Genachowksi led the FCC’s efforts to make sure Internet service providers like Verizon didn’t block or discriminate against services that competed with Verizon’s own content offerings.
Verizon cried foul, since the FCC’s policy decision seemed to contradict earlier court rulings. Verizon also said the ruling forced it to provide unlimited bandwidth without compensation (as a Fifth Amendment Takings Clause violation). And Verizon also made a First Amendment argument about its freedom to promote and publish content as an information service provider.
In January, the court said the FCC could set general guidelines for Internet service providers; compel Internet service providers to disclose how they block or discriminate against services; and work with Congress to change how Internet service providers are classified, so the agency would have the ability to re-impose anti-blocking and anti-discrimination regulations.
The appeals court said that since it already decided that the FCC didn’t have the power to impose net neutrality policies on a business it hadn’t classified as a common carrier, the judges didn’t need to tackle Verizon’s First Amendment case.
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