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A little over a month after a federal appeals court dealt a blow to the FCC’s enforcement of an “Open Internet,” otherwise known as net neutrality, FCC chairman Tom Wheeler said on Wednesday that he intends to move forward with new anti-blocking and anti-discrimination rules.
On Jan. 14, the D.C. Circuit Court of Appeals struck down those rules. Two of the three appellate judges authored an opinion that expressed some sympathy for why government regulators would want to create restrictions on broadband providers like AT&T and Verizon, but nevertheless ruled that the agency had exceeded its scope by imposing impermissible per se common carrier obligations on these telecom giants.
Immediately after the ruling, however, Wheeler put out his interpretation of the ruling, saying he was pleased that the appeals court had granted his agency the authority to enact measures governing broadband providers’ treatment of Internet traffic.
In the month since the ruling, there have been fears that telecom giants could soon charge digital operators like Netflix that use a tremendous amount of bandwidth. The concern has grown in some quarters since the announcement of Comcast’s proposed acquisition of Time Warner Cable.
On Wednesday, Wheeler put out a statement that indicated he would be asking his fellow commissioners for new “Open Internet” rules. He said the initiative came after talking to Los Angeles-based video producers whose success may depend on whether they are “unfairly prevented from harnessing the full power of the Internet.”
Specifically, Wheeler said he would attempt to meet the D.C. Circuit Court’s decision by coming up with a sufficient legal rationale for the existence of anti-blocking and nondiscrimination measures. The FCC chairman looks to leverage Section 706 of the Telecommunications Act of 1996 as the foundation of these rules and, with an eye on surviving challenges, come up with standards and guidance for broadband providers. He’s also not ruling out using Title II of the Communications Act to reclassify Internet access service as a telecommunications service in a future battle over the defense of net neutrality.
Wheeler also wants to use the portion of the January 14 ruling that blessed the agency’s transparency rules. “This is more significant than many people may realize,” he says. “We should consider ways to make that rule even more effective.”
According to his statement, the FCC won’t be appealing last month’s order to the Supreme Court. He is, though, soliciting public comment.
“When the earlier rules were adopted in 2010, some predicted that they would stifle investment and innovation,” he said. “They were wrong. In fact, investment increased for both edge providers and in broadband networks. In particular, since 2009, nearly $250 billion in private capital has been invested in U.S. wired and wireless broadband networks. The FCC must stand strongly behind its responsibility to oversee the public interest standard and ensure that the Internet remains open and fair.”
Wheeler’s statement has brought reactions from some of the larger companies in media.
David L. Cohen, executive vice president at Comcast Corporation, says, “Comcast supported the Commission’s Open Internet Order as an appropriate balance of protection of consumer and business interests and we agreed in the NBCUniversal Transaction Order to abide by the Open Internet rules for seven years even if the rules were modified by the courts. With the direction announced today, FCC Chairman Wheeler has taken a thoughtful approach that creates a path for enforceable rules based on the appropriate authority outlined by the Court’s findings.”
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