Wheeler To Press Ahead With Thursday Net Neutrality Vote

Wheeler responded to O’Rielly and Pai, by tweeting, “FCC received more than 4 million comments” on net neutrality. “It’s time to act.” Former Democratic Commissioner Michael Copps, who rejected a comparison of the net neutrality order with his call for delaying the media ownership vote, said the Republican calls Monday were “a stall tactic, plain and simple” with the Democratic majority expected to approve reclassifying broadband in a 3-2 party-line vote.

Meanwhile, lobbying continued on the order’s details, with Google, according to an ex parte filing, expressing concern to agency officials that a provision establishing a relationship between Internet service providers and edge providers could open the door to ISPs charging edge providers for delivering content to customers.

“With the future of the entire Internet at stake, it is imperative that the FCC get this right,” said O’Rielly and Pai in the joint statement. "And to do that, we must live up to the highest standards of transparency.” Expected to vote against the order, they argued “transparency is particularly important” because the draft is “drastically different” from last May’s NPRM. Citing a poll (see 1501210048), O’Rielly and Pai said the majority of Americans support making the draft public before a commission vote. Democratic Commissioners Michael Copps and Jonathan Adelstein in 2003 called for delaying a vote on media ownership rules, O’Rielly and Pai noted.

The net neutrality proceeding has had “unprecedented levels of public comment on a variety of options,” an agency spokeswoman said in a statement responding to O'Rielly and Pai. Wheeler followed the “long-standing process followed in both Democratic and Republican administrations” by circulating the draft (see 1502040055) three weeks before the vote. Commissioners Mignon Clyburn and Jessica Rosenworcel didn't comment.

Copps responded on Twitter saying O’Rielly and Pai “are way off base comparing depth of record undergirding” the net neutrality rules to the media ownership decision. In an interview, Copps told us the net neutrality debate has been going on since 2002. “We’ve argued every possible up and down, every possible pro and con. We’ve delayed action for too long of a time,” he said. The media ownership rule vote “was a rush job to get the rules through. There was an incomplete record and not nearly the level of detail. … We’re going to find [the net neutrality order] is on much better ground.”

Unrelated to the response for a delay, the agency announced Monday that Thursday’s meeting will begin at 9:30 a.m., an hour earlier than usual. The time is being moved up because of the expected length of the meeting, at which the commission also is expected to approve petitions to pre-empt anti-municipal broadband laws in Tennessee and North Carolina.

Google is concerned about a provision cited in the agency’s fact sheet on the draft order that would make clear that the service broadband providers make available to edge providers is a Title II telecommunications service if “a court finds that it is necessary to classify the service.” A senior agency official said during a media briefing when the fact sheet was released that the provision gives another level of certainty about the order’s legal justification. In its order throwing out most of the 2010 Open Internet order, the U.S. Court of Appeals for the D.C. Circuit had raised questions about the edge provider-ISP relationship, the official said. Google officials acknowledged that in meetings with aides to Clyburn and Rosenworcel Feb. 19. The court said, “without reference to any evidence, that ‘broadband providers furnish a service to edge providers,’: despite agency arguments the relevant relationship is between end consumers and broadband providers.

Edge providers rely on users' arrangements with ISPs to reach consumers, and for “for the most part, edge providers have no relationship with their users’ ISPs,” Austin Schlick, Google communications law director, Johanna Shelton, senior counsel, and Staci Pies, senior public policy and government relations counsel, told Clyburn and Rosenworcel’s aides. Schlick made the same arguments to Wheeler Chief-of-Staff Ruth Milkman, General Counsel Jonathan Sallet and Wireline Bureau Chief Julie Veach in separate phone calls. Some ISPs, particularly abroad, claim they should be able to charge content providers for providing a service to them while charging their retail customers for the same traffic. “To the extent the Commission encourages the falsehood that ISPs offer two overlapping access services instead of just one, or the fiction that edge providers are customers of terminating ISPs when they deliver content to the Internet, it may encourage such attempts at double-recovery,” Google said.

Additionally, sticking to the court’s “unsupportable assertion” would mean the agency would “abdicate its role as the expert federal agency” and “weaken rather than strengthen the Commission’s ability to defend net neutrality rules in court,” Google said. Free Press Policy Director Matt Wood and Sarah Morris, senior policy counsel for the New America Foundation’s Open Technology Institute also raised concerns the provision could jeopardize the order in court during a Feb. 18 meeting with General Counsel and Wireline officials, an ex parte filing said.