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FCC Will Create New Net Neutrality Rules

Court decision will not be the end of FCC’s open internet efforts

FCC Chairman Tom Wheeler on Wednesday unveiled a plan for the FCC to pursue Net Neutrality by crafting new rules to prevent blocking, discrimination and enhance transparency — instead of appealing a court’s decision to overturn its existing rules.

“We now have a blueprint for effective action,” said a senior FCC official.

Wheeler said the FCC will enforce the existing agreements and promises it has won from some Internet service providers for complying with the old rules while crafting the new rules and moving to bolster competition. He said the FCC might move to overturn state laws preventing municipal broadband services.

Some consumer groups are reacted with disappointment to the decision, saying it could open up any new rules to additional legal challenges and effectively prevent Net Neutrality from taking effect.

“Chairman Wheeler’s announcement talks about the need to restore our legal protections and ensure we can communicate freely online,” said Free Press President-CEO Craig Aaron. “But pretending the FCC has authority won’t actually help Internet users when websites are being blocked or services are being slowed down. If the Internet is to continue to thrive, we need decisive action and clear protections under the law.”

Gene Kimmelman, president and CEO of Public Knowledge, said Comcast’s purchase of Time Warner Cable has further demonstrated the need for Net Neutrality and he was skeptical the FCC would be able to enforce Net Neutrality requirements without reclassification. At the same time he noted that Wheeler hadn’t left open the possibility of voting later on reclassification.

“We are pleased that the FCC plans to protect Internet openness, promote transparency, encourage municipal broadband, and achieve other goals,” he said. He added he was “encouraged” the FCC was keeping the reclassification option open.

Also read: Net Neutrality Suffered a Blow, But It’s Not Dead: Now the FCC Has Choices to Make

For now at least, Wheeler indicated the FCC will hold off on reclassifying broadband services it now describes “information services” as more telephone like “common carrier” services, a move that would give the agency far greater authority to regulate the Web. Consumer groups and some Hollywood unions have urged the FCC to make the reclassifications but Congressional Republicans have warned such a move would fuel a backlash against the agency.

Wheeler announced the action in a statement, in which he described preserving the Web as an open platform as “an important responsibility.”

“The FCC must stand strongly behind its responsibility to oversee the public interest standard and ensure that the Internet remains open and fair,” he said in the statement. “The Internet is and must remain the greatest engine of free expression, innovation, economic growth, and opportunity the world has ever known. We must preserve and promote the Internet.”

Wheeler said he intended to seize on the appellate court’s ruling that though the specific rules enacted didn’t pass legal muster, the FCC does have the authority to act.

Also read: Big Win for Net Neutrality? How the Comcast-Time Warner Deal Can Help Save the Open Internet

“I intend to accept that invitation by proposing rules that will meet the court’s test for preventing improper blocking of and discrimination among Internet traffic, ensuring genuine transparency in how Internet Service Providers manage traffic, and enhancing competition,” Wheeler said in the statement.

He said the court verdict leaves the FCC with “authority to encourage broadband deployment by, among other things, removing barriers to infrastructure deployment, encouraging innovation, and promoting competition.”

Wheeler made clear that the FCC would seek public comment before writing any rules. In its Open Internet rules that were overturned the FCC treated wired Internet connections differently than mobile Internet connections for some purposes.

While not providing a lot of details, Wheeler said the new rules would target three areas.

He said the FCC would move to enforce and enhance a requirement that Internet Service Providers transparently disclose how they manage their network traffic.

He said FCC would move to bolster its requirement preventing ISPs from unfairly blocking of network traffic. The appellate court said the FCC did not provided adequate rationale for the rule. Finally he said the FCC will move to expand a “non-discrimination” requirement for network traffic the court upheld.