Revised Net Neutrality NPRM More Open to Title II, Less Friendly to Pay-for-Priority
A recirculated net neutrality NPRM is less friendly to the idea of pay-for-priority deals, and more open to the idea of Title II reclassification, agency and industry officials told us. Industry observers see the redraft (CD May 1 p2) as a response to the public outcry over a perceived turnaround on net neutrality. Net neutrality proponents have been lobbying the FCC on the NPRM, ex parte filings show.
Sign up for a free preview to unlock the rest of this article
Timely, relevant coverage of court proceedings and agency rulings involving tariffs, classification, valuation, origin and antidumping and countervailing duties. Each day, Trade Law Daily subscribers receive a daily headline email, in-depth PDF edition and access to all relevant documents via our trade law source document library and website.
The revised item spends less time defending and endorsing the idea of pay-for-priority agreements between ISPs and edge providers, shifting to a tone more akin to one of resignation, an FCC official said. The NPRM takes the position that the Verizon v. FCC case throwing out the net neutrality rules essentially ties the commission’s hands, the official said, in characterizing the new tone. The shift is not surprising, given the criticism Wheeler has faced in the media since the original NPRM was made public, agency and industry officials said. An FCC spokesman declined to comment.
Both the original and current NPRMs asked about Title II, but “there has been a change in tone,” the FCC official said. To get an idea of the differing content of the revised NPRM, look to two blog posts FCC Chairman Tom Wheeler posted on the topic, the official said. The first blog post said Title II is an option, but listed the reasons the agency shouldn’t do it (http://fcc.us/1f7n7n9). The second blog post, posted five days later, was far more pointed -- Wheeler repeatedly stated he would invoke Title II if he has to (http://fcc.us/S7aUoc).
Netflix met last week with aides to every commissioner except Wheeler to express its support for an “open Internet.” The company “does not support policies that force online content providers into ‘fast’ and ’slow’ lanes,” wrote Corie Wright, director-global public policy (http://bit.ly/1mwda1j). “Consumers already pay broadband providers for access to the Internet. Broadband providers should not restrict their subscribers’ access to Internet content or compel Internet applications and services to pay a toll to deliver content requested by those subscribers."
Public reaction “has caused the FCC to try to tighten [the NPRM] up to clarify that to the extent possible under the court decision they want to preserve the principles of the original net neutrality order,” said a former FCC official who does not have clients involved in the net neutrality fight. Other sources said questions remain about what happens next. “As of Thursday afternoon, I was told that there was one question about Title II, asking if it was a viable alternative to what they were proposing,” said a public interest lawyer.
"A turn towards Title II classification of broadband, for the first time by the way, would not only roil financial markets as network operators are trying to raise money to upgrade their networks, but it would embolden international proponents of intergovernmental regulation of the entire Internet ecosystem,” said former FCC Commissioner Robert McDowell. “Global regulators won’t be satisfied with merely getting ISPs in their clutches, they want it all -- content and application providers as well. A U.S. Title II maneuver will act as rocket fuel for such power grabs."
"I'm glad the FCC is responding,” said Harold Feld, senior vice president at Public Knowledge. “The FCC needs to understand that this is not just the usual crowd of Washington insiders looking at this, but the broader public,” he told us by email. “Ask someone outside the Beltway if they know what the ‘incentive auction’ is or the ’spectrum screen’ and you get a blank look. But net neutrality shows up in pop culture places like the Daily Show. If ordinary people reading the language of this Notice feel that the FCC has now decided to actively defend paid prioritization as OK, or if the NPRM doesn’t treat Title II as a real option, then these people are going to feel the Administration has backtracked on its commitment to protect the Open Internet -- whatever the agency’s intent.” PK told aides to commissioners last week it had “grave concerns” on reports the commission would consider paid prioritization under a “commercially reasonable” standard (CD April 28 p2).
"Wheeler will be making a mistake if he equates reactions from self-identified ‘consumer groups’ with the views of consumers at large, especially if this false equation leads him in the direction of Title II or Title II-like regulations,” said Free State Foundation President Randolph May. He lamented the “confusion” Wheeler has created by talking about “what is really just a proposal” in so many different forums and tones. “The shifting messaging detracts from the notion of the FCC as a so-called independent agency relying on expertise, rather than politics,” he said. May suggested Wheeler acknowledge the role of his fellow commissioners as he talks about the NPRM preparation process: “Promoting collegiality is an important aspect to fostering sound decision-making in a multimember agency like the FCC."
"The shift in tone and substance, if it’s genuine, certainly is due to the public outcry and the press attention,” said Free Press Policy Director Matt Wood. “Millions of people have spoken up since the court case came out in January” that threw out some net neutrality rules, “along with hundreds of advocacy organizations and innovators, and they all know that Internet discrimination would be a disaster,” he said. Wood said he welcomes Wheeler’s “better rhetoric,” but “he has to finish the job” by treating broadband Internet access “like the common-carrier service it is.”