FCC gets 3M net neutrality comments as debate over wireless exemption heats up

Now that the deadline has passed for sending comments to the FCC on its proposed new rules for net neutrality, a key debate is emerging over whether the rules should apply equally to wireless networks and wired ones. Wireless carriers, which had been exempt from most net-neutrality rules covering wired ISPs that passed in 2010, are digging in their heels against the new regulations, while the FCC notes that the question remains an open one.

The FCC has received more than 3 million comments on the net-neutrality proceeding, which will determine whether and how network providers treat content on their networks equally. The commission held a roundtable discussion today on the issue.

The FCC voted in mid-May to approve draft net-neutrality rules that would re-examine whether to treat wireless networks differently from wired broadband networks as part of a proposal to ensure that consumers get equal access to all Internet content. There is no timeline for when the FCC will vote on final rules, but FCC Chairman Tom Wheeler has said he would like to have new rules in place by the end of the year.

Wheeler indicated last week that the FCC is still deciding whether changes in the wireless market warrant a re-evaluation of which net-neutrality rules should apply to mobile networks.

"The basic issue that is raised is whether the old assumptions upon which the 2010 rules were based match new realities," Wheeler said in a speech last week at CTIA's Super Mobility Week conference in Las Vegas.  He noted that the FCC is examining the role of expansion of LTE networks, which provide faster mobile data speeds, adding that when the last rules were written, in 2010, there were 200,000 LTE subscribers and that today there are 120 million, with buildouts to 300 million Americans.

An FCC spokeswoman told the New York Times that Wheeler's remarks were not substantially different from what the agency said when its draft rules were issued in May.

The next day, CTIA President Meredith Attwell Baker, herself a former FCC commissioner, offered a retort. "We are told the remarkable growth of smartphones and LTE since the 2010 rules warrants heavier regulation now," Baker said. "Wrong again."

CTIA noted in its latest filing with the FCC on net neutrality, which it made on Monday, that "mobile broadband presents unique technical challenges that demand far more complex and aggressive network management than fixed broadband requires. Mobile networks must subject different uses or users to differentiated treatment on a constant basis to provide consumers with the level of service they have come to expect."

Mobile Future, a technology policy group whose members include AT&T (NYSE: T), Verizon Communications (NYSE: VZ), Ericsson (NASDAQ: ERIC) and Qualcomm (NASDAQ:QCOM), wrote in its filing that wireless networks "are constantly evolving and face highly differentiated technological and operational attributes, which demand regulatory restraint to afford operators the flexibility to manage their networks to enhance their consumers' experience. Mobile providers face spectrum constraints as well as considerable challenges posed by consumers that are, by definition, constantly mobile."

"Since the 2010 rule, these differences have only deepened due to the increasing capacity demands being imposed on networks, the rise in adoption of mobile platforms, services, and devices across all categories, the advent of the so-called 'Internet of Everything' and the growing mobility of American wireless consumers today," Mobile Future wrote. "Despite these facts, should the Commission nevertheless choose to impose new regulations on mobile broadband services, those rules should, at most, reinstate the 2010 no-blocking rule, maintaining carrier flexibility to respond to network and market conditions."

On the other side of the debate are Internet companies and public-interest groups, which argue that people are coming to rely on mobile broadband for their primary Internet connections--and that carriers themselves are producing speeds with their LTE networks that rival fixed networks.

Google (NASDAQ: GOOG) offered its comments last week, saying net-neutrality rules "should apply regardless of whether you're accessing the Internet using a cable connection, a wireless service or any other technology." According to Bloomberg, Microsoft has noted that wireless carriers have the same incentive to block or degrade traffic from innovators, and called for the rules to apply equally.

As when the FCC last tried to adopt net-neutrality rules, in 2010, wireless carriers would face a transparency rule that would require them to disclose whether they are treating traffic differently on their networks. The newly proposed rules would enhance the transparency requirements and would, as Wheeler has said, require networks to disclose any practices that could change a consumer's or content provider's relationship with the network.

In 2010, fixed and wireless carriers were banned from blocking users' access to legal websites, with exceptions for "reasonable network management." Wireline ISPs also could not engage in "unreasonable discrimination" against legal web traffic, but wireless carriers were only barred from blocking applications that competed with their own voice or video calling services.

Under the new proposed rules, the FCC would adopt a "no-blocking" rule that prohibits broadband providers from depriving content providers of "a minimal level of access to the broadband provider's subscribers." Perhaps most controversially, for content not prohibited by the "no-blocking rule" the proposed rules would require broadband providers to adhere to a still-to-be-defined standard of "commercially reasonable" practices. The proposed rules seek comment on whether "paid prioritization" agreements that would allow content providers to pay ISPs for faster access should be banned altogether. Nothing in the proposal, Wheeler has said, authorizes paid prioritization. He also has said that the "speed and quality of the connections the consumer purchases must be unaffected by the content he is or she is using."

CTIA and many carriers also oppose the FCC's reclassifying broadband, and mobile broadband especially, as "communication services" under Title II of the Telecommunications Act, arguing that such a move would pose major legal headaches and stifle innovation. Many public-interest groups favor that approach, arguing that it will give the FCC broad authority to regulate the broadband market and protect consumers. The FCC has left open the possibility of doing so.

For more:
- see this FCC post
- see this NYT article
- see this Bloomberg article
- see this WSJ article (sub. req.)
- see this Washington Post article
- see this The Verge article

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