Despite public protest, the Federal Communications Commission pushed their new net neutrality rules forward.

“What is the right public policy to ensure that the Internet remains open? … Today, there are not legally enforceable rules by which the Commission can stop broadband providers from Internet openness,” according to the 99-page Notice of Proposed Rulemaking released by the FCC.

On Thursday, the FCC attempted to answer that first question by voting 3 to 2 to advance the proposal, that includes Internet fast lanes, to public comment. Chairman Tom Wheeler initially unveiled the potential of fast lanes in April and was heavily criticized.

Credit: Jeremy Brooks
Credit: Jeremy Brooks

“Net neutrality is not an either or situation, and that’s the problem with all of the news articles that have been coming out lately that it is either a free internet or a closed internet,” said Dana Frix, a telecommunications lawyer whose practice includes FCC regulatory issues, in regards to Chairman Tom Wheeler’s proposal to allow service providers to charge sites extra to have their content load faster online prior to Thursday’s vote.

The proposed rule making questions if Internet fast lanes can and should exist, and if ISPs must disclose if websites are paying for that extra service. What is curious about the FCC’s proposal is that “fast lanes” are referred to as “paid-for-priority” access to web users instead, and Wheeler himself spoke out against “fast lanes.”

The potential for there to be some kind of “fast lane” available to only a few has many people
concerned. Personally, I don’t like the idea that the Internet could become divided into “haves” and
“have nots.” I will work to see that does not happen. In this Item we specifically ask whether and how to prevent the kind of paid prioritization that could result in “fast lanes.”

The proposed net neutrality rules and Internet fast lanes pits Internet service providers and websites against each other. Prior to the vote, Facebook, Google, Amazon, Netflix and nearly 100 other websites sent an open letter to the FCC calling net neutrality “a grave threat to the Internet.” Mozilla, the company behind the web browser Firefox, went as far as proposing their own alternative to the FCC’s proposal that would allow for Title II reclassification.

The FCC is soliciting comments on reclassifying ISPs as “telecommunication carriers.” According to communications attorney Mitchell Lazarus in CommLawBlog, Wheeler has briefly entertained this idea.

The legal obstacles are probably surmountable, but the political barriers may be higher. Successive FCC chairmen have ruled out the possibility – although the current Chairman Wheeler recently backed off somewhat from this commitment, reminding us that the Commission still has the authority to reclassify Internet service if warranted. Yet that authority comes from Congress, where some have warned that they will step in to overrule the FCC if it tries to reclassify.

One thing that will not change, however, is that the FCC has not and will not give up on regulating the Internet. Overall, the proposal reiterates the agency’s commitment to the 2010 Open Internet Order and its language of transparency and prohibiting content discrimination.

“First, this proposal is a change in policy for the Democrats on the Commission.  It is not, however, as dramatic a change as some opponents have asserted,” said telecommunications attorney Steven Augustino prior to the vote. “The FCC still is asserting authority over broadband internet service providers, and intends to enforce the disclosure rule and the prohibition on blocking of traffic.”

The FCC’s proposal is rather extensive and even considers extending open Internet rules to mobile web. However, it’s important to remember that these are in no way the final rules, even though Wheeler does hope to have something in place by the end of the year.