FCC Adopts Open Internet Study Proposal

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FCC chairman Tom Wheeler

Chairman Tom Wheeler said this vote will not question "whether or not there will be an open internet, but how to assure an open Internet."

The FCC voted Thursday to adopt Chairman Tom Wheeler's proposal for an open Internet, triggering a 120 days period of comment on how the new rules should work. 

The vote was three in favor and two against, with the vote on party lines. The chairman and two Democrats voted for it, and the two Republican commissioners voted against the proposal. 

The vote means the start of a period when there will be comments and discussions about how to keep the Internet open to all for both consumers and innovation. 

Wheeler said this vote will not question "whether or not there will be an open Internet, but how to assure an open Internet."

Wheeler said the FCC is dedicated to creating a level playing field for both consumers and Internet providers, but it has to be fair to all. "The prospect of a gatekeeper choosing winners and losers on the Internet is unacceptable," said Wheeler. 

Wheeler said that while there may be opportunities for paid prioritization on the web in some cases, the FCC will never allow a situation where consumers do not get the level of service they paid for and were promised.

This proposal, said Wheeler, would create an ombudsperson inside the FCC who would accept comments from all and then investigate those that need to be looked at, bringing to the attention of the full commission those that require consideration or action. 

Wheeler said the proposal would expand transparency and require Internet providers like Comcast, Charter and Verizon to notify the FCC about any of their actions that might impact or violate the rules. "I call it the 'rat out' rule," said Wheeler, adding that the provider would have to disclose any change in what consumers get or providers do that might change the way the Internet functions. 

The proposal mostly envisions that the new rules will fall under section 706 of the 1996 communications act, but also seeks comment on whether or not to use Title II rules that would place the Web under the same kind of regulation that legacy telephone companies currently must follow. 

"I will not allow the national asset of an open Internet to be compromised," stated Wheeler. 

Each commissioner spoke before the vote. The first was Mignon Clyburn, who started out by saying that her mother had called her about the confusion over an open Internet, which was the first time in 16 years she had heard from her about an issue. She said this showed her how much people care and how widely this issue is being debated. 

Clyburn said her concern was that the Internet not be slowed down or in any way used to stop things like speedy transmission of medical records and patient information, the use of the web for education or to stop innovation by new companies and entrepreneurs. 

She said at first she thought about opposing this motion, but then chairman Wheeler made changes that were responsive to her concerns, so she will vote to open what she anticipates will be a robust period of comment and discussion. 

"The real call to action," said Clyburn, "begins after this rule is passed."

She said that she knows "the eyes of the world are upon all of us."

FCC Commissioner Jessica Rosenworcel, one of the three Democrats, called the Internet a "modern town square," and said at first she had wanted to delay any vote because she felt there was a need for more information and input. 

"We cannot have a two-tier Internet with fast lanes for the privileged that leave the rest of us to follow," she said. 

She praised Wheeler for adjusting the proposal based on the comments she made and those of others so that "all options are on the table." She said that is why she can support the proposal. 

Commissioner Ajit Pai, one of the Republicans on the FCC, said he could not vote in favor of the proposal. He said that he feels this is a matter that needs to be dealt with by the Congress, not by five "unelected" officials. 

Pai said he agrees that the web must be a free and open market, and that he thinks it is best to let it operate "unfettered by regulation."

He noted two prior FCC rules that impacted the Internet had been thrown out after court challenges. He said he feels the FCC is once more "rushing headlong into this." 

Pai called for a series of studies on the issue, starting by having ten economists (with two each chosen by each commissioner) do a study of the economic impact, and then having open hearings to discuss and debate the findings. He also called for other studies by broadband experts and technology specialists to look at all implications. 

Getting this right, said Pai, is "more important than getting it done right now."

Commissioner Michael O'Reilly, another Republican member, said at the outset he would not support the proposed rulemaking. He said he was not comfortable with using section 706 of the Communications Act to regulate the Internet and opposed any effort to use Title II to treat it like a phone company. 

He said the actions by the commission move the Internet toward "the slippery slope of regulation."

He said using Title II would bring "real harm" to consumers and businesses.

He said even the idea of new rules is questionable because there is no real evidence of actual harm so there is no proof of a need for regulation. 

O'Reilly said regulation at this point could "stifle innovation" and still be of no help to consumers. 

The meeting was interrupted once by a woman who stood up and loudly declared the need for an open Internet. She was promptly removed from the chamber by guards. 

In his remarks, Wheeler noted the widespread comment and strong reaction to the FCC's discussion on net neutrality. He said the "founding fathers must be looking down and smiling" at the robust discussions that have been inspired. He even thanks those who had pitched tents outside the FCC and had waited days for this hearing. 

Wheeler said he thanks all sides for their "passionate concern about this important issue."

Wheeler said this was not something the FCC wanted to do, but rather it is forced to act because in January the federal district court threw out the rules passed in 2010 concerning an open Internet.  

Whatever the FCC eventually decides after the period of comments, Wheeler restated his earlier promise that the Internet will never be divided between the haves and the have nots. "I will work to see that does not happen," said Wheeler firmly.