Third Net Neutrality NPRM Draft Stronger on Title II, Has Rebuttable Presumption Against ISP/Affiliate Deals
A third draft net neutrality rulemaking notice contains a much more substantial Title II section, FCC and industry officials told us Monday. The draft was set for circulation to commissioners as early as Monday, an agency official said. Each version of the NPRM has devoted more attention to Title II as a possibility, encouraging public interest groups that have been rallying their base for weeks. A protest at the FCC is gathering steam, with several tents set up outside agency headquarters, and a rally planned for Thursday morning when commissioners are to vote on the NPRM, after Chairman Tom Wheeler declined to delay a vote as his colleagues sought (CD May 12 p1). “It’s working,” Free Press said in an email to supporters, urging them to bring “pots, pans or whatever else you can bang on."
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 NPRM still concludes Communications Act Section 706 is the best path forward, but the new draft “digs much more into Title II as an alternative,” an agency official said. It seeks to “compare and contrast” Section 706 and Title II, and asks which would be better for protecting and promoting an open Internet, agency and industry officials said. The item also asks specific questions on forbearance, such as where the agency should use its forbearance authority if it takes a Title II path. AT&T slammed the idea of reclassification, in meetings with aides to commissioners last week (CD May 12 p7). To one agency official, that implies the telcos realized there is a real possibility Title II will be fully on the table.
Unlike circulating orders, circulating NPRMs don’t get voted on before they are revealed at the meeting, agency officials said. Commissioners’ offices get the opportunity to post their position or propose edits in an email chain that’s circulated among the various offices. An agency spokesman declined comment on the new NPRM. The agency plans a Twitter chat at 2 p.m. Tuesday with Special Counsel-External Affairs Gigi Sohn, and will accept questions using the hashtag #FCCNetNeutrality (http://fcc.us/RASYlh).
The circulating NPRM uses the idea of a rebuttable presumption against exclusive contracts between ISPs and their affiliates, agency and industry officials said. They said that would shift the burden to ISPs to show priority agreements with affiliates were “commercially reasonable.” That could cover hypothetical deals such as between Comcast and NBCUniversal, or Google Fiber and YouTube. The new NPRM seeks comment on whether the FCC should have an ombudsman to represent smaller edge providers in disputes with ISPs, said an agency official.
The draft also adds to the “commercially reasonable” standard, agency and industry officials said. Based on public comment that has been received on the proposal, it was evident the commission needed to go into more detail on what a “commercially reasonable” agreement would be, and how to determine what a baseline service is for purposes of the no-blocking rule, an agency official said.
"Describing what he'd try to prohibit under a commercially reasonable standard, or at least what he'd presumptively ban, may sound tempting” to Wheeler, said Matt Wood, Free Press policy director, by email. “But the DC Circuit was very clear on this point. Looking back at the Data Roaming precedent, the court reminded the FCC that a commercially reasonable standard applied ‘in a restrictive manner’ could be struck down yet again with an as-applied challenge. That’s why Chairman Wheeler’s fighting a losing battle under 706.” Reclassifying and then forbearing is preferable to looking for ways to avoid the common-carrier issue, which would “set the agency up for failure again,” Wood said.
The new draft asks whether the agency should define a new category of service between edge providers and broadband providers, agency and industry officials said. That’s based on the Mozilla petition, they said. The Mozilla petition proposed classifying remote delivery services as Title II telecom services (CD May 8 p25).
The new draft takes a harsher tone against pay-for-priority agreements, agency and industry officials said. Where an earlier draft asked if “some” paid prioritization should be banned outright, the new draft asks whether “some or all” should be banned, the officials said.