Mozilla Likes Its Hybrid Approach, But Says It Prefers Straight Reclassification
FCC Chairman Tom Wheeler is said to be considering a hybrid approach to net neutrality (see 1410240029), but one of the key proponents of a middle-ground path, Mozilla Senior Policy Engineer Chris Riley, told officials in the General Counsel’s office last week that given the choice, he’d prefer straight Title II Communications Act reclassification over even his own approach. Strict reclassification would be “cleaner and simpler” than hybrid approaches, including Mozilla’s proposal, Riley said he told General Counsel Jonathan Sallet and Associate General Counsel Stephanie Weiner at a meeting. He supports either approach, Riley said.
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Mozilla’s preference bolsters the case for simple reclassification, said some Title II proponents. “If even a hybrid proponent says straightforward reclass[ification] is better than a hybrid, that should get the FCC's attention -- unless the chairman is locked into something he can sell as a compromise, no matter its merit,” said Free Press Policy Director Matt Wood.
Others didn't think it would deter the agency from a middle ground. "It appears the chairman has a preference for the hybrid approach, perhaps because he wants to minimize the impact of reclassification," said George Ford, Phoenix Center chief economist. Mozilla appears to be proposing "a rich mix of Title II and Section 706 authority in an attempt to create a regulatory regime that neither Title II nor Section 706 permits alone," said Ford. "Two wrongs do not make a right, and I expect that such convoluted legal theories will lead to judicial trouble for the Commission."
Riley declined to comment on whether his statements to the commission could have a political impact, saying the organization was mainly concerned about the strength of open Internet rules rather than the mechanism for achieving it.
Mozilla has always preferred reclassification, and offered its version of a hybrid proposal hoping “to give the FCC options” to bridge the gulf between Section 706 and Title II advocates,” Riley said in an interview. Even so, two meetings Riley had with Sallet and Weiner, on Oct. 22 and Oct. 28 , according to Mozilla’s ex parte filings, focused on how a hybrid would work. But “in response to a hypothetical question of choosing between the two [at the second meeting], we did want to make clear where we stood,” Riley said.
The Oct. 28 meeting occurred two days before The Wall Street Journalreported Wheeler’s current line of thinking involves taking a hybrid approach, reflecting in part, but also differing from Mozilla’s approach. The hybrid reportedly being considered was attacked by some advocating reclassifying broadband, like Free Press President Craig Aaron, who called a hybrid a “Frankenstein” approach. Gabe Rottman, legislative counsel and policy adviser in the American Civil Liberties Union's Washington office, also criticized the hybrid approach in a blog post Wednesday.
While not dismissing Mozilla’s separate hybrid plan, attorneys for Public Knowledge and the New America Foundation’s Open Technology Institute have also pushed for a straight reclassification approach. They told an aide to Commissioner Jessica Rosenworcel, according to an ex parte filing, that Title II reclassification with forbearance is the “soundest, clearest path forward.” Public Knowledge also told Sallet and Weiner straight Title II reclassification is “a more reliable and consumer-oriented framework."
The plan under consideration reportedly would classify the relationship between broadband and edge providers under Title II, but would not reclassify the relationship between consumers and broadband providers. Riley was uncertain how that differs from Mozilla’s proposal, but said it appeared to be “in line” with it. Under Mozilla’s proposal, the service broadband providers offer to end-users would remain governed by Title I, but the service broadband providers offer to remote end points or remote edge providers would be governed under Title II, Riley said. Previous classifications of broadband under Section 706 applied only to the broadband provider and consumer relationship and would not require the commission to overturn its past decisions, he said.
Asked whether he got any indications from meetings with FCC officials that Wheeler is indeed leaning toward a hybrid approach, Riley said only, “There’s a lot of ideas and a long way to go.” Riley also expressed uncertainty of the outcome of the debate in a blog post Friday, saying, “We believe the baseline of what we can expect has gone up, and now, rumored likely outcomes all include some element of Title II, or common carrier, protections sought by advocates against significant opposition. We don’t know what that will look like, or whether the baseline has come up enough.”