FCC Will Vote on Net Neutrality Thursday Despite Protests (Analysis)

The passage will begin a long process of comments and rewrites before there is a final vote, followed by the inevitable court challenges.
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Despite protests on all sides and calls to delay consideration, the Federal Communications Commission will almost certainly bring chairman Tom Wheeler’s net neutrality proposals to a vote on Thursday morning.

Sources close to the situation say that Wheeler would not bring the controversial proposals forward at the FCC’s meeting if he was not sure he'll be able to get the three votes needed for passage (his own, plus two of the four other commissioners).

The initial net neutrality proposals that Wheeler circulated on Feb. 18 allowed broadband providers to sell special access to the Web but still blocked them from slowing down other Web traffic.

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That was meant to replace an earlier "open Internet" rule struck down in January by a federal district court after it was challenged by Verizon. At present, there aren’t any rules governing the Internet.

Wheeler detailed on April 29 why he was pushing for new rules now: "I am concerned that acting in a manner that ignores the Verizon court's guidance, or opening an entirely new approach, invites delay that could tack on multiple more years before there are open Internet rules in place.  

"We are asking for comment on a proposed course of action that could result in an enforceable rule rather than continuing the debate over our legal authority that has so far produced nothing of permanence for the Internet."

The latest draft of teh proposal, which began circulating Monday, offers additional protections against a Web where the rich have different rights -- known as "paid prioritization" -- and, even more significantly, floats the option of reclassifying the Internet as a public utility, which would give the FCC greater authority to regulate it. (Big broadband providers like Comcast, AT&T and Charter strongly oppose such a reclassification.) The Internet has been classified as an information service since 2002, which limits the FCC's authority over it.

Wheeler's new draft also lays out how the FCC will enforce the new rules and builds in safeguards that would keep the spirit of the proposal intact even if there is a change of government in the future -- which would mean new FCC leaders. It would also ban certain types of fast lanes, including those that give priority to subsidiaries of broadband providers (so Comcast, for example, could not give NBC a special deal). The FCC also would gain the authority to review in advance prioritization deals that may be anti-competitive.

One thing is certain: The vote Thursday won't settle anything permanently and will only start a process that is likely to take months to play out. It is shaping up as the noisiest, most acrimonious, most divisive public debate over media rules since the SOPA and PIPPA battles over foreign Internet piracy in 2012.

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Wheeler has been on the defensive since he first circulated a proposal. Separate from the broadband companies' opposition, advocates of a completely free Internet say allowing broadband providers to charge for special access amounts to a government takeover of the Web that will turn it into a toll road for the rich. They are not likely to support the latest proposals, either.

As with SOPA/PIPPA, those demanding the Internet remain free have found supporters in the big technology companies, including Google and Netflix, who are concerned they will have to buy special access to remain viable.

More than 100 Internet and technology companies and both Republican FCC commissioners objected to the initial draft. In response, a key element of the new proposal, according to an article in The Wall Street Journal, would ban broadband providers from slowing down online content as a result of pay-for-play deals struck with companies seeking faster delivery of their content.

In a letter to the big tech companies on Sunday, Wheeler wrote: "I will not allow some companies to force Internet users onto a slow lane so that others with special privileges can have superior service."

Among the most vocal opponents of the new rules has been Democratic Sen. Al Franken, who wrote the FCC a letter which said, "Pay-to-play deals are an affront to net neutrality and have no place in an online marketplace that values competition and openness."

Franken and other opponents fear that the new rules would make it more difficult for new entrants and fledgling entrepreneurs to use the Web to start or grow businesses and ultimately would mean higher costs for consumers.

STORY: Appeals Court Deals Blow to FCC's 'Net Neutrality' Rules

Another twist in the revised proposals is Wheeler's inclusion of two outside ideas. Mozilla, which makes open-source applications for the Web, wants to create two distinct areas: local delivery, governing the relationship between the providers and consumers, and remote delivery, which would apply to services like Netflix that want to ensure their massive data flow is uninterrupted. Mozilla wants the FCC to reclassify the rules under Title II, so the Internet is treated more like a regulated public utility or a "common carrier."

The other proposal is from professor Tim Wu of Columbia University, who credited with coining the term "net neutrality." After Wheeler first put forward his proposal, Wu wrote in The New Yorker: "This is what one might call a net-discrimination rule, and, if enacted, it will profoundly change the Internet as a platform for free speech and small-scale innovation." Wu's latest idea is that the Commission should pass even tougher rules using existing authority and Title II. He says that could preempt the inevitable court challenges by creating a "trip wire." That means if the broadband providers invalidate the new rules then they will fall under the common carrier authority of the commission, which they like even less.

If, as expected, the FCC votes to move forward, there will be an initial 60-day period for more comments, which is likely to lead to more revisions. This will go on even as the debate grows ever more heated. Whoever wins, someone will inevitably challenge the new rules in court.