FCC Chairman Tom Wheeler is reportedly revising his proposal on draft net neutrality rules to make it clear that the FCC would look at deals between content providers and ISPs to ensure broadband providers don't slow the content of companies that do not pay ISPs for faster access.
It's unclear if or how the new proposal, which the Wall Street Journal said is being circulated to Wheeler's fellow commissioners, would apply to wireless carriers. Wireless carriers are already exempt from most net neutrality rules. Last month an FCC official said the agency would seek comment on whether mobile broadband providers should be subject to the same "commercially reasonable" standard as wired ISPs when making deals with content providers.
Wheeler's initial proposal, first introduced last month, sparked a firestorm of criticism from lawmakers, FCC commissioners and companies like Google (NASDAQ: GOOG) and Netflix (NASDAQ: NFLX) over concerns that content providers would be forced to pay to ensure their content was delivered quickly.
Now, according to the Journal, the new draft would also seek comment on whether such "paid prioritization" agreements should be banned altogether.
Importantly, the new draft will also seek comment on whether the FCC should reclassify broadband as a Title II common-carrier telecommunications service, and not an information service. Wheeler has always held out that approach as an option to crafting net neutrality rules. It is a move that is favored by net neutrality proponents because it could put the rules on firmer legal footing, and it is strongly opposed by carriers and ISPs, which have warned that treating the Internet as a utility would strongly harm innovation and investment.
"The new draft clearly reflects the public input the commission has received," one of the FCC officials told the Journal. "The draft is explicit that the goal is to find the best approach to ensure the Internet remains open and prevent any practices that threaten it."
AT&T has already come out swinging against a reclassification to Title II, even if the FCC were to embrace a legal strategy of "forbearance" and not apply many Title II common-carrier obligations to broadband providers.
"To be sure, the Commission might attempt to minimize the disruption and calm the markets by proposing to forbear from most statutory provisions in Title II, as it did when it first proposed reclassification," AT&T wrote in a recent FCC filing. "But sorting through which of these provisions should apply and which would be subject to forbearance would itself ignite controversy, disagreement, and litigation, creating protracted regulatory uncertainty."
However, Title II proponents said AT&T is twisting the narrative on reclassification. "As usual, AT&T's positions are laughable at best--though disingenuous is more like it," Matt Wood, policy director of consumer advocacy group Free Press, told Ars Technica. "Nothing in Title II says that every last provision has to apply to any Title II service. That's the whole point of forbearance. The fact that broadband providers could be entitled to something doesn't mean they actually are entitled to it, or that AT&T's cost-causation story is true."
"To look at a real-world example instead of an AT&T fantasy: mobile voice is a common carrier service, and yet CMRS [commercial mobile radio service] providers are barred from charging access fees," Wood also said. "And many enterprise market broadband services are telecom services yet still subject to bill-and-keep and privately negotiated contracts. Nothing about Title II commands the results that AT&T's straw man argument suggests."
- see this WSJ article (sub. req.)
- see this CNET article
- see this Washington Post article
- see this AT&T filing
- see this Ars Technica article
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