FCC chairman and former big telecom lobbyist Tom Wheeler just said in a blog post that he's won't hesitate to use Title II of the Communications Act of 1934 if he has to. This is the authority the FCC uses to regulate telephone companies. It's also a move that's sure to please net neutrality advocates.
As such, it's kind of hard to tell if Wheeler's acting tough or just talking tough. The general gist of his blog post is that everybody's misunderstanding the FCC's proposed rules and is unnecessarily freaking out. Furthermore, we need to do something quickly to secure Open Internet rules, so if push comes to shove, Wheeler's willing to do whatever it takes to ensure "a broadly available, fast and robust Internet as a platform for economic growth, innovation, competition, free expression, and broadband investment and deployment." It actually sounds like Wheeler's saying the FCC will defend the internet at all costs. This, despite the fact that the FCC's always been terrible at defending the internet.
This is where Title II comes into play. Net neutrality advocates have long argued that the FCC should regulate the internet under Title II, because that means internet service providers would be treated like "common carriers" that must act in the public interest. This is currently how the telephone system is regulated. Specifically, Title II forbids "discrimination in charges, practices, classifications, regulations, facilities, or services for or in connection with like communication service." Sounds a plan that would jive pretty well with the principles of net neutrality, doesn't it?
The big question here, of course, is why the FCC hasn't already done this. Well, the short answer is that the court's haven't let them. A previous version of the FCC's net neutrality rules did not allow companies to pay for better internet service; that would be a clear violation of net neutrality principles. However, a U.S. Appeals Court threw those rules out in January, because the FCC had already defined the internet as an information service, not a common carrier, and thus, the agency didn't have the authority to impose these rules.
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Now, Wheeler's basically saying that the FCC will stop ignoring its own powers and redefine the internet as a common carrier—but only if it has to. The chairman wrote:
If anyone acts to degrade the service for all for the benefit of a few, I intend to use every available power to stop it.
Using every power also includes using Title II if necessary. If we get to a situation where arrival of the "next Google" or the "next Amazon" is being delayed or deterred, we will act as necessary using the full panoply of our authority. Just because I believe strongly that following the court's roadmap will enable us to have rules protecting an Open Internet more quickly, does not mean I will hesitate to use Title II if warranted.
Pretty tough talk, right?! Well, it's just talk for now. The proposed rules—rules that would allow pay-to-play deals between internet companies—remain the same. They're up for public review until May 15, at which point it's entirely possible the FCC could approve them and close the book on net neutrality as we know it. At least we know now that Wheeler might steer the agency down a different path. Possibly. Maybe. But only if he has to.
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