Network Neutrality is Not "Dead"

By Gary Kim February 19, 2014

The Federal Communications Commission will propose new “network neutrality” rules that will meet with recent court decisions, FCC Chairman Tom Wheeler says. At the moment, it is unclear precisely what all that will mean.

The FCC will not, for the moment, try and reclassify Internet access service as a “common carrier” offering, an outcome virtually all ISPs would likely prefer to avoid, and that would impose all sorts of rules that likely would make even Google Fiber tough to introduce, as Google Fiber builds neighborhood by neighborhood, and only after sufficient potential demand is evident.

Common carrier rules might make that approach unworkable. Common carrier rules might also lead to the imposition of pricing rules that collectively could sway investment decisions by both incumbents and challengers.

Most significantly, common carrier regulation could be imposed on the cable industry for the first time, under Title II, if Internet access is declared to be a telecom service, and not a data service.

What also is unclear is whether the commission actually will try and impose “best effort only” rules again, on fixed network or perhaps even on mobile ISPs, thus precluding development of any services that assure quality of service provided by ISPs.

The D.C. Circuit ruled that the FCC has the legal authority under section 706 of the Telecommunications Act of 1996 to “encourage broadband deployment” by, among other things, removing barriers to infrastructure deployment, encouraging innovation, and promoting competition.

That is the hook allowing the FCC to craft network neutrality rules; though some might say it is a stretch.

Among the issues is “blocking,” which already is covered by other FCC rules, but which Wheeler says must be considered in terms of “unfair” blocking that can be explicit or implicit.

The commission also says it will keep open the option to regulate Internet access service as common carrier services under Title II of the U.S. Communications Act.

Wheeler says he intends to ask commissioners to create new rules related to “transparency,” requiring network operators disclose how they manage Internet traffic.

Contrary to what seems the conventional wisdom, network neutrality is not “dead.”

Edited by Cassandra Tucker

Contributing Editor

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