FCC Chairman Wheeler’s statement today on Net Neutrality sets out the need to protect consumers and preserve an open internet. How that happens is somewhat secondary to making sure it does, but nothing seems to change the fact that reclassifying broadband remains the best way to do this.
In short, the FCC is keeping all of its possible tools in play. From a legal standpoint, the obvious answer would be to follow the roadmap laid out by the D.C. Circuit’s opinion and reclassify broadband as a telecommunications service. That would give the FCC all the authority it needs to preserve net neutrality. But the D.C. Circuit also acknowledged that section 706 gives the FCC broad power to do lots of other things, so long as they will encourage the deployment of broadband.
So Wheeler’s statement is largely about exploring the possibilities of section 706—basically, asking how much it can do to protect Net Neutrality. But the Chairman is clearly and explicitly saying that Title II is still an active tool for them to use in the future. It’s certainly easier for the FCC to say it will use Title II if it must than to actually do it. But exploring both options simultaneously rather than choosing Title II today is not exactly running screaming from statutory authority.
First, it’s important to run down what the D.C. Circuit actually said in its opinion. It actually agreed that net neutrality was an important goal, and that it was clear that ISPs had the opportunity, means, and motive to discriminate among traffic. But it said that the legal authority the FCC cited for its Open Internet Order (known as section 706) couldn’t be used to issue telecom-style rules for broadband providers. That means that while one important part of the rules remained (transparency provisions that required ISPs to report on how they’re managing traffic), the other parts, which prohibited blocking and discrimination, were written too similarly to telecom rules to be considered separate.
Wheeler’s statement is working along these lines. Like the D.C. Circuit, the White House, and millions of Americans, he recognizes the importance of keeping the internet open and free. That goal is the central point of net neutrality; the particular authority used to get there is just a means to an end. We’re skeptical that section 706 can actually get you all the way to real net neutrality, but that doesn’t mean closing the door to what you can do with section 706. More importantly, as long as exploring Section 706 includes exploring where it falls short so that it does not slow down going to Title II if necessary, then the FCC should explore both options.
Speaking of what you can do with section 706, the D.C. Circuit’s opinion makes it pretty clear that, while you might not be able to do something that looks too much like traditional common carrier regulation with it, there’s a heck of a lot you can do with it. For instance, Wheeler notes, the FCC would seem to have the power overturn state laws that ban communities from setting up their own broadband networks—laws passed with the lobbying muscle of ISPs that don’t want the competition. The outer bounds of section 706 are now open for discussion—and they may provide a scope of regulatory power as broad as Title II might have (in some ways, potentially broader). That’s another reason to have proceedings on section 706—ensuring that its authority is used to encourage deployment and competition, and not stray into more troubling areas like censorship or copyright filtering. This, too, should be a clue to the path ahead—one where Title II isn’t a political polarizer, but instead a simple, direct application of the FCC’s job to protect an open internet.