FCC Chairman Tom Wheeler issued a statement today laying out the agency’s strategy for preserving and restoring open Internet policies, but also confirmed that the FCC had no plans on appealing an earlier court decision in the case against Verizon. The Appeals Court ruled that the agency did not have the authority to enforce its net neutrality rules over broadband networks under section 706 of the Telecommunications Act. The rules were designed to force companies like Verizon to treat all network the same and not prioritize its own services - or services that pay for faster pipes - over other services.
“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.
In his statement Wheeler said that he will do a number of things to promote an Open Internet including the creation of new rules for ISPs, forcing ISPs to remain transparent about how they manage network traffic, putting rules in place to halt ISPs from blocking traffic, and soliciting public opinion.
“The Court of Appeals has affirmed the Open Internet Order’s transparency rule, which requires that network operators disclose how they manage Internet traffic,” Wheeler said. “This is more significant than many people may realize. We should consider ways to make that rule even more effective.” And as Wheeler notes, transparency would be particularly important because it would be the best way to determine if there was anything that prevented the FCC’s policy of an open Internet.
Wheeler avoided the topic of redefining ISPs as “common carriers,” which would make it easier to apply regulations to broadband providers and would likely survive a court challenge. Of course, Congress could fix the Telecommunications Act too, but that is highly unlikely given that the House is currently controlled by a Republican majority, which is not too keen on the FCC's Open Internet policies.
Other FCC commissioners (both Republicans) did not like Wheeler's plan and issued statements raising concerns.
“I am deeply concerned by the announcement that the FCC will begin considering new ways to regulate the Internet. As I have said before, my view is that section 706 does not provide any affirmative regulatory authority,” said FCC commissioner Mike O’Rielly in a statement. “It appears that the FCC is tilting at windmills here. Instead of fostering investment and innovation through deregulation, the FCC will be devoting its resources to adopting new rules without any evidence that consumers are unable to access the content of their choice.”
“The Internet was free and open before the FCC adopted net neutrality rules. It remains free and open today,” FCC commissioner Ajit Pai said in a statement. “Net neutrality has always been a solution in search of a problem.”
You can read Wheeler's statement here.