Net Neutrality Enforcement Comes Down to Title II/706 Debate, FCC Roundtable Hears

Noting the debate appeared to be between having flexibility in rules as the industry advocated or having the clear-cut regulations pushed by public interest groups, Wheeler asked panelists about Eshoo’s idea to focus rules on Title II’s Section 202, which speaks to discrimination and blocking (CD Sept 12 p9).

Leaving out Section 208, which gives authority to petition the commission, could affect the ability to file complaints, said Mozilla Senior Policy Engineer Chris Riley, who was unsure about the idea. Eshoo’s proposal still leaves a fundamental problem with the Title II approach, said NCTA Senior Vice President-Law & Regulatory Policy Rick Chessen. Title II advocates said at the workshop that treating ISPs as common carriers would be the clearest path to enforce net neutrality rules. Chessen said questions like what’s meant by Title II’s ban on “unreasonable discrimination” and what provisions should be forborne would lead to years of debate.

"There’s nothing simple or quick about Title II,” Chessen said, citing the long debate over special access fees. The filing requirements of Title II “will make your head spin,” he said. How to define “commercially reasonable” paid prioritization under Section 706, as the net neutrality NPRM proposed, should be decided on a “case-by-case basis” rather than through “prophylactic proposed rules,” Chessen said. That would maintain flexibility in the “fast-moving, evolving” industry, he said.

Regulations would be a burden on smaller broadband providers, said Steve Coran, WISPA regulatory counsel. He advocated for safe harbors for certain practices and a requirement there be a 30-day period of “good faith negotiations” between the parties before a complaint could be filed. Also advocating a Section 706 case-by-case approach, former Enforcement Bureau Chief David Solomon, now a Wilkinson Barker communications lawyer, said a determination of “real harm” to consumers should precede enforcement action.

A Section 706 approach would not provide clear rules, Riley said. January’s U.S. Court of Appeals for the D.C. Circuit decision threw out the 2010 net neutrality order because it treated companies as common carriers and it left no “substantial room for individualized bargaining and discrimination (CD Jan 15 p1).” To avoid being thrown out again as common-carrier regulations, a Section 706 approach would have to allow for exceptions to its “commercially reasonable” standard, Riley said.

A case-by-case approach would unfairly pit consumers against “titans” like a combined Comcast/Time Warner Cable, said Susan Crawford, co-director of the Berkman Center for Internet & Society and a visiting professor at Harvard Law School. Crawford backed a Title II approach. Section 706 would be “muddled” and “full of uncertainty,” said Kickstarter Deputy General Counsel Michal Rosenn. Negotiating prioritization agreements would overwhelm edge companies like hers, Rosenn said. Kickstarter would not have been able to survive if it had to negotiate paid prioritization agreements based on commercial reasonable standards judged on a case-by-case basis, she said.

Panel moderators Enforcement Bureau Chief Travis LeBlanc and Deputy Chief Paula Blizzard asked about some ideas, including issuing nonbinding agency guidances to let ISPs know what’s acceptable under the rules. WISPA’s Coran said it wouldn’t be helpful because the guidance wouldn’t be binding. NCTA’s Chessen objected to the creation of an ombudsman if it was intended to be a consumer advocate against ISPs. Mandating arbitration before a complaint could be filed would only delay action if improper conduct were occurring, Mozilla’s Riley said.