The FCC will use a modernized version of Title II with Section 706 as a “one-two” punch to keep the Internet fast, fair and open, FCC Chairman Tom Wheeler said in a speech Monday, in which he provided a little more insight into his plans, which remain unpublished.
Wheeler confirmed last week the widespread expectation that the FCC would redefine broadband as a communications service under Title II. He has circulated the plan with his fellow commissioners, but has not released it publicly.
Not releasing the report in advance has agitated many, including Commissioner Ajit Pai. Sen. Dean Heller last week reintroduced legislation that would force the FCC to publish orders before voting on them. A similar bill was introduced in 2011. The FCC Process Reform Act would require the commission to set performance metrics for its programs. The landmine in the bill is the requirement that the FCC survey the market before writing new regulations and determine that the benefits of a new rule would outweigh the costs.
Wheeler’s comments at the Silicon Flatirons Center in Boulder, CO, yesterday provide some additional details into his yet-to-be published plan.
The Chairman led into the new details by addressing the relentless industry criticism of Title II as outdated.
“We have heard endless repetition of the talking point that Title II is old-style, 1930’s monopoly regulation,” he said, according to the text version of his speech. “It’s a good soundbite, but it is misleading when used to describe the modernized version of Title II that I’m proposing.
“My proposal will also use the significant powers in Section 706, not as a substitute but as a second tool. This one-two punch is not the so-called ‘hybrid’ approach; it applies Title II, as well as Section 706, to protect broadband Internet access. It is the FCC using all of the tools in its toolbox to protect innovators and consumers.”
The tools, he said, would ban paid prioritization, blocking and throttling. “They would stop any last-mile tactics that harm consumers and edge providers by unreasonably interfering or disadvantaging their use of these broadband connections.”
He did not address complaints that Title II will give the FCC authority to set rates. Wheeler said he has no intention of doing so. The Internet Commerce Act forbids it anyway.
Wheeler said his proposal will also assert jurisdiction over interconnection. “For the first time, transit providers, or CDNs, or content companies will be able to file a complaint with the FCC and the Commission will be able to take public comment, investigate and decide whether the actions of the ISP have been ‘just and reasonable’,” he said.
Much of the speech included reiterations of points made earlier.
The industry insists that Title II authority is unnecessary because no one intends to violate network neutrality principles, but every other company can thank Verizon for negating that argument. As Wheeler noted, “When Verizon was asked in open court if they wanted to restrict access through special commercial terms, their counsel replied, ‘I am authorized to state by my client today that but for these rules we would be exploring those commercial arrangements.’”
On the issue of speed, the FCC has redefined “broadband” from 4 Mbps to 25 Mbps. The move was opposed by the industry.
Wheeler said by the industry’s own estimation, 25 Mbps is already available to 83 percent of households in the U.S. – he said that sounded pretty standard to him. He has been invoking the industry’s own marketing to convince subscribers with multiple connected devices that they need 50 Mbps or more. He quoted from Verizon’s.
He reiterated the Commission’s intention to reverse state laws lobbied for by the industry to restrict or prevent municipal broadband. “I am recommending that the Commission vote to pre-empt two restrictive state laws hampering investment and deployment in areas where consumers are clamoring for service from successful municipal providers.”
The two states are Tennessee and North Carolina. There are 19 states that prohibit municipal broadband.
Wheeler has the authority and the votes to approve his plan. At least one company, and probably several, will almost certainly be challenge the plan in court.
Meanwhile, the American Cable Association has petitioned to exempt small and mid-size ISPs from some Title II provisions.
According to the association, “[T]he Chairman‘s proposal to reclassify the broadband Internet access service as a Title II common carrier service solely to provide a legal basis under Title II for his Open Internet rules will impose unwarranted and onerous burdens on smaller ISPs, increasing their costs of doing business, increasing their customers’ cost of receiving service, and inhibiting their ability to finance and deploy broadband. For smaller ISPs, the FCC can achieve its objectives of an Open Internet through other means. As a result, ACA is asking the FCC, with respect to small ISPs, to forbear from applying at a minimum the regulatory obligations applicable to Title II telecommunications carriers.”