In the strongest and clearest expression of his intentions to date, Chairman Tom Wheeler of the Federal Communications Commission (“FCC”) describes the path the FCC will take to regulate both wireline and wireless broadband services pursuant to a “light touch” Title II approach. The Chairman’s comments were published earlier today in an article published in WIRED Magazine:
https://www.wired.com/2015/02/fcc-chairman-wheeler-net-neutrality/
Chairman Wheeler explained:
“Originally, I believed that the FCC could assure internet openness through a determination of “commercial reasonableness” under Section 706 of the Telecommunications Act of 1996. While a recent court decision seemed to draw a roadmap for using this approach, I became concerned that this relatively new concept might, down the road, be interpreted to mean what is reasonable for commercial interests, not consumers.
That is why I am proposing that the FCC use its Title II authority to implement and enforce open internet protections.
Using this authority, I am submitting to my colleagues the strongest open internet protections ever proposed by the FCC. These enforceable, bright-line rules will ban paid prioritization, and the blocking and throttling of lawful content and services. I propose to fully apply—for the first time ever—those bright-line rules to mobile broadband. My proposal assures the rights of internet users to go where they want, when they want, and the rights of innovators to introduce new products without asking anyone’s permission.
All of this can be accomplished while encouraging investment in broadband networks. To preserve incentives for broadband operators to invest in their networks, my proposal will modernize Title II, tailoring it for the 21st century, in order to provide returns necessary to construct competitive networks. For example, there will be no rate regulation, no tariffs, no last-mile unbundling. Over the last 21 years, the wireless industry has invested almost $300 billion under similar rules, proving that modernized Title II regulation can encourage investment and competition.”
Parsing through the Chairman’s article, it becomes fairly clear the FCC intends to extend Section 201 and 202 of the Communications Act to broadband services. These provisions prohibit service providers from engaging in “unjust and unreasonable” (Section 201) practices and “unjust or unreasonable discrimination” (Section 202). The FCC will use Sections 201 and 202 to establish certain “bright line” prohibitions on paid prioritization, blocking and throttling. What is also easy to discern is the Commission’s intent to NOT extend any price regulation, tariffing or network unbundling regulations to broadband: “For example, there will be no rate regulation, no tariffs, no last-mile unbundling.” The Chairman leaves open the possibility, indeed likelihood, that Section 254’s universal service fund (“USF”) regulations –including the requirement that broadband providers contribute to support the USF– will be extended, though we will await publication of the Order before jumping to any conclusions.
What is undeniable is that the impending changes in FCC regulations will have far-reaching impacts that extend well beyond the goal of ensuring Network Neutrality. The changes are certain to affect not only companies that are directly tied into the Internet ecosystem, but also providers of traditional communications services and indirect users of the Internet network.
Given the apparent breadth of the soon-to-be-announced regulations, we advise all clients to closely monitor developments and conduct an in-depth analysis of the rules and their impact on your business immediately upon the Commission’s release of the full text of the Order.
Please contact Jonathan Marashlian at jsm@commlawgroup.com or by phone: 703-714-1313 to make necessary arrangements in advance to ensure professional staffing resources are available to assist in your company’s evaluation of the implications of the new regulations on your company.
