Along Party Lines, FCC Votes to Explore Idea of Internet Fast Lanes

The FCC voted 3-2 Thursday to explore the potential of Internet fast lanes, as expected (CD May 15 p1). But Chairman Tom Wheeler wanted to make one point clear: Fast lanes for some will not mean slow lanes for others. “I don’t like the idea that the Internet could become divided into haves and have nots,” he said. “I will work to see that does not happen.” Wheeler said he wants rules in which, if an ISP slows speeds below what the consumer bought, “it would be commercially unreasonable and therefore prohibited.” Republican commissioners said net neutrality rules are a government solution in search of a problem.

Wheeler’s reassurances did little to assuage public interest advocates, who swiftly characterized the proposal as one that would allow fast lanes. “These proposed rules could eventually mean an end to the free and open Internet as we've known it,” said Consumers Union Policy Counsel Delara Derakhshani in a statement. Said John Bergmayer, senior attorney at Public Knowledge: “Clever wording can’t get around a simple logical fact: If there are fast lanes, there are slow lanes.” Any scenario in which an ISP builds new fast lanes would make the existing lanes the slow ones, Bergmayer told us. “ISPs will have little incentive to invest to make the Internet experience better for everybody."

An agency spokesman took issue with the idea that the NPRM contemplates allowing fast lanes. It actually explores the potential of “banning” fast lanes, the spokesman said. “There has been a huge misconception,” Wheeler told reporters after the packed open meeting. “This proposal does not provide, or mandate, paid prioritization,” Wheeler told reporters. “There is nothing in this proposal that authorizes a fast lane. We're asking questions, but we don’t jump to conclusions."

The event was briefly interrupted by protesters, before they were escorted out of the Commission Meeting Room by armed guards. About a hundred protesters rallied outside before the meeting started.

The NPRM asks for comparative input on the benefits of using Title II or Section 706 of the Communications Act to ensure the Internet remains an open platform for innovation. The notice tentatively concludes that Section 706 offers a quicker and more resilient path forward, in line with January’s Verizon v. FCC decision. The NPRM asks if paid prioritization should be banned outright, and includes a rebuttable presumption that exclusive contracts prioritizing services between ISPs and their affiliates would be unlawful.

The item expands on the 2010 net neutrality order’s transparency rule, which the Verizon court left standing. “Enhanced” transparency rules would require ISPs to disclose specific network practices; performance characteristics such as upload and download speeds, latency and packet lost; and information about data caps. The NPRM concludes broadband providers should disclose “meaningful information” about their service. The notice also seeks comment on whether to revisit the differential treatment accorded to mobile and fixed broadband Internet. The item considers allowing anonymous reporting of net neutrality violations, to “alleviate fears by start-ups of retribution from broadband providers,” an FCC fact sheet said (http://fcc.us/1lvNdNx).

The NPRM text asked several questions about how to enhance the transparency rule: “Should we view some categories of edge providers, such as start-up companies, as having distinct needs and, if so, what would be the implications for an enhanced transparency rule?” It (http://fcc.us/1lvNdNx) asked if transit, content delivery networks or other providers engaged in Internet traffic exchange be considered “a class of persons whose interests are similar to those of edge providers"? The item also asked about edge providers that “interconnect directly with broadband providers through peering arrangements.” The agency said it seeks comment on “whether these subgroups have distinguishable needs for information that could be provided through disclosure and, if so, what kind of information would be most useful.” However, interconnection and peering generally are a “different matter” better addressed separately, Wheeler said.

Asked for an example of a pay-for-priority service that might past muster under the new rules, Wheeler pulled out his Government Emergency Telecommunications Service card. “I can go to any phone in America and type in this number, and get priority access that you can use in a case of emergency,” he said. “We probably don’t want to rule out something like that.” ISPs might also want to prioritize 911 calls, he said.

"This debate has been falsely labeled as a debate over fast lanes and slow lanes,” said AT&T Senior Executive Vice President Jim Cicconi in a statement. “It is not about that at all. This debate is over whether we will continue to foster an investment environment that has allowed US companies to build the world’s best networks so that all consumers can have the fastest Internet lanes in the world."

Commissioner Jessica Rosenworcel concurred in the item, saying she “would have done this differently,” taking time to “understand the future” (http://fcc.us/1gsKLvf). Commissioner Mignon Clyburn said she had “significant concerns” about the initial proposal that was circulated. After “interactions” with staff and Wheeler’s office, the item “changed considerably” as the chairman “incorporated my many requests,” she said (http://fcc.us/1gsKLvf).

Partisan Rift

Wheeler would prefer bipartisan agreement on the net neutrality rules, but acknowledged that was unlikely. “I'm always looking to have bipartisan agreement,” he said. “I have a hard time associating myself with either of the comments of my Republican colleagues today, however, who were pretty adamant that they think that the whole idea of open Internet is something we should not be involved in. And I disagree with that strenuously."

In response to Republican allegations that the Democrats were given the latest draft a full day before the Republicans got it (CD May 14 p1), Wheeler said: “Everybody got [the draft] three weeks early, There were a couple of early ‘nos.’ You go to put something together, somebody who says, ‘Excuse me, I don’t want to participate with you on that’ sends a message: ‘I'm a no.'"

Commissioner Ajit Pai “never said that he didn’t want to participate,” his spokesman told us. “Rather, he called for the item to be delayed so that we could concentrate our energies on the incentive auction item. We don’t know what the chairman is talking about when he says that we were an early no.” Monday, for the first time, Wheeler’s office called Pai’s office to ask for a vote on net neutrality, the Pai spokesman said. Wheeler’s office “asked if there was anything they could do to get Commissioner Pai’s vote,” said the representative. “When we returned their call and left a message, they never called us back. Instead, we heard shortly thereafter they had circulated a new draft to the Democratic offices."

In dealings with Republican offices, Wheeler falls short of his predecessor, said a former FCC official who has been kept in the loop. Former Chairman Julius Genachowski , also a Democrat, went to every office to solicit votes, even on net neutrality where it was clear there would be Republican opposition, said the ex-official who now is an industry lawyer. “From what I understand, there were zero visits, requests for discussion, communication, telephone calls,” the official said. “Yes, he circulated early” -- but he didn’t actively reach out or follow-up, the official said.

The Republican commissioners dissented. “Nothing less than the future of the Internet depends on how we resolve this disagreement,” said Pai (http://fcc.us/1gsL3Ca). “What we do will imperil or preserve Internet freedom. It will promote or deter broadband deployment to rural consumers and infrastructure investment throughout our nation. It will brighten or hamper the future of innovation both within networks and at their edge. ... And it will advance or undermine American advocacy on the international stage for an Internet free from government control. A dispute this fundamental is not for us, five unelected individuals, to decide.”

Commissioner Mike O'Rielly said Congress never intended Section 706 to grant the FCC such broad regulatory authority over the Internet. That the item uses not only Section 706 but also Section 230(b) to “broaden the scope of the Commission’s usurped authority” is “absurd,” O'Rielly said (http://fcc.us/1gsL3Ca). “Now that the commission is trying to cast an even wider net of authority, I fear that other services and providers could become ensnared in the future."

'Dismantling’ Open Internet?

Lawmakers weighed in cautiously, their concerns breaking along party lines, by and large reflecting pleas throughout the last week. Senate Commerce Committee Chairman Jay Rockefeller, D-W.Va., called it “an important step forward.” People “do not care what magic words the FCC uses to assert its authority, they just want the assurance that the Internet will remain free and open,” Rockefeller said. “That is why I am glad that all options are on the table, including Title II.”

Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., lashed out at paid prioritization agreements, which “do not reflect open Internet principles,” he said, “and I will not support any effort by the FCC to condone those kinds of agreements.” Leahy said he appreciates Wheeler “asking for comment on a range of proposals, including whether to reclassify broadband providers as common carriers, and is explicitly asking whether to ban pay-to-play deals.”

Any inclusion of Title II reclassification left Senate Communications Subcommittee ranking member Roger Wicker, R-Miss., “disappointed,” he said in a statement issued as the commission approved the NPRM. “By keeping legacy regulation on the table, the chairman is fostering marketplace uncertainty.” Senate Commerce Committee ranking member John Thune, R-S.D., tweeted Thursday that he’s “disappointed” the agency is pursuing net neutrality rules and is open to Title II and that he'll continue to fight against them, linking to a recent letter of opposition from Senate GOP leadership.

Wheeler “has ignored the bipartisan congressional calls for caution,” said House Commerce Committee Chairman Fred Upton, R-Mich., and Communications Subcommittee Chairman Greg Walden, R-Ore., predicting “spirited discussion” with him at a Tuesday subcommittee oversight hearing on Wheeler’s “misguided vision of a heavily regulated Internet.” They called any net neutrality rules “unnecessary’ and said any attempts at reclassification amount to “a worrisome course” for the Internet future. Congress should lead on this issue rather than the FCC, said House Commerce Committee Vice Chairman Marsha Blackburn, R-Tenn. “Trying to regulate or reclassify the Internet has as much support as transferring Guantanamo Bay detainees to the United States,” Blackburn said. “Both proposals are net losers that need to be retired once and for all.” She plans to ask Wheeler about the cost-benefit analysis of net neutrality rules she requested at the Tuesday oversight hearing, she said. House Communications Subcommittee Vice Chairman Bob Latta, R-Ohio, also blasted the FCC’s “proposal to regulate the Internet,” dismissing “these remarkably outdated rules from the 1930s.” Rep. Joe Barton, R-Texas, called the proposal unnecessary.

Net neutrality rules “must be strong enough to prevent online gatekeepers from creating fast and slow lanes, and stand on strong legal ground to avoid yet another round of legal challenges,” countered House Communications Subcommittee ranking member Anna Eshoo, D-Calif. She welcomed “consideration of a stronger legal framework -- Title II -- that reclassifies broadband as a common carrier."

Wheeler must lead the charge “to maintain net neutrality by reclassifying broadband providers as common carriers,” said House Judiciary IP Subcommittee ranking member Jerrold Nadler, D-N.Y. He signed a Congressional Progressive Caucus letter along with 35 other House Democrats this week backing such Title II reclassification (CD May 15 p6). The NPRM would “undermine the principles of net neutrality and the open internet,” Nadler said in a Wednesday letter to Wheeler slamming the vote: “You have said that you do not want to allow the creation of fast and slow lanes on the internet, but I am afraid your proposal will do just that.” Rep. Doris Matsui, D-Calif., is “still very much concerned with the paid prioritization concept,” she said, despite appreciating Wheeler’s attempts at improving what she feels is the still-imperfect NPRM. The agency should extend its public period, she said.

The NPRM vote “could spell the beginning of the end of the Internet as we know it,” said Senate Judiciary Privacy Subcommittee Chairman Al Franken, D-Minn., calling it “a woefully misguided step toward handing the Internet over to big corporations who can pay boatloads of money for preferential treatment.” He plans to try to convince the agency to “change course,” he said. Sen. Ed Markey, D-Mass., blasted the NPRM, which “could begin the dismantling of the open Internet as we know it unless the Commission reclassifies broadband as a telecommunications service under Title II.” The Internet’s “opportunity must not be limited to those companies that can afford high-priced lobbyists in Washington,” said Sen. Richard Blumenthal, D-Conn.

President Barack Obama “strongly” supports net neutrality, said a White House written statement. “The FCC is an independent agency, and we will carefully review their proposal. The FCC’s efforts were dealt a real challenge by the Court of Appeals in January, but Chairman Wheeler has said his goal is to preserve an open Internet, and we are pleased to see that he is keeping all options on the table,” the statement said. “We will be watching closely as the process moves forward in hopes that the final rule stays true to the spirit of net neutrality.”