The head of the Federal Communications Commission has now given some indication of how he proposes that his agency proceed on Net neutrality. In a statement, Chairman Tom Wheeler has outlined three steps forward, while keeping reclassification on the table as a possible option.
The statement made clear that Wheeler does not want to appeal last month's federal court ruling in Verizon v. FCC. Some legal observers have noted that, while the agency's Open Internet policy was overturned, the court decision made clear that the FCC has broad authority under the Telecommunications Act of 1996 to preserve an open Internet -- a significant victory for the agency.
The FCC's Open Internet Order, adopted in 2010, prevents Internet service providers (ISPs) from blocking services or providing varying degrees of network access for different content providers.
No Blocking, Section 706
One of Wheeler's proposed steps calls for the enhancement and enforcement of the transparency rule so that ISPs would be required to make public how they manage their networks.
A second step: developing a way to maintain the "no blocking" policy that allows the FCC to prohibit an ISP from blocking any provider. Wheeler noted that the federal court order "recognized the importance" of its ban on the blocking of Internet traffic, but it ruled the FCC "had not provided sufficient legal rationale for its existence."
In light of that, he said, the agency can take steps that comply with the court's order but ensures that "edge providers are not unfairly blocked, explicitly or implicitly, from reaching consumers, as well as ensuring that consumers can continue to access any lawful content or services they choose." Edge providers are those who provide goods and services over the Net, and the steps to be taken were not specified.
The third proposed step, Wheeler said, is for his agency to consider how it can use Section 706 of the Telecommunications Act of 1996 to "fulfill the goals of the non-discrimination rule."
Title II on the Table
That section says that ISPs cannot manage their networks by discriminating against certain applications, like Netflix's streaming video service. For guidance, the agency will look to previous court cases where courts have ruled in favor of the FCC's governing authority, such as those relating to reasonable roaming rates.
Wheeler's statement also includes another component that is a fallback. He said he intends for the FCC to "keep Title II authority on the table."
That section of the Telecommunications Act of 1996 gives the agency the authority to reclassify Internet access as a telecommunications service, instead of its previous classification by the agency as an information service. If ISPs are telecommunications services, the court has agreed the FCC can then declare them to be common carriers, which would mean they must carry all traffic without playing favorites.
Wheeler had been expected to propose steps that fall short of reclassification, but it had not been clear if he would rule it out.