By a 3-2 vote, the Federal Communications Commission (FCC) adopted new rules on 26 February classifying the Internet as a public utility in order to ensure net neutrality and an open Internet.
According to a press statement, the FCC “once and for all – enacts strong sustainable rules, grounded in multiple sources of legal authority, to ensure that Americans reap the economic, social and civic benefits of an Open Internet today and into the future.” The statement noted that the new rules are grounded in the belief that America’s broadband networks must be fast, fair and open.
FCC Chairman Tom Wheeler labeled the vote as “the proudest day of my public policy life” and, in a supporting statement, noted that the new rules would:
- Ban Paid Prioritization: “’Fast Lanes’ will not divide the Internet into ‘haves’ and ‘have-nots.’”
- Ban Blocking: “Consumers must get what they pay for – unfettered access to any lawful content on the Internet.”
- Ban Throttling: “Degrading access to legal content and services can have the same effect as blocking and will not be permitted.”
He also reinforced the need for the rules, noting that “we know from the history of previous networks that both human and economic opportunities act to encourage network owners to become gatekeepers that prioritize their interests above the interests of their users. As the D.C. Circuit observed in the Verizon decision and as the public record affirms, broadband providers have both the economic incentive and the technological capability to abuse their gatekeeper position.”
The rule adoption was also supported by FCC Commissioners Mignon Clyburn and Jessica Rosenworcel.
In support of his vote, Clyburn noted “There are countries where it is routine for governments, not the consumer, to determine the type of websites and content that can be accessed by its citizens. I am proud to be able to say that we are not among them. Absent the rules we adopt today, however, any Internet Service Provider (ISP) has the liberty to do just that. They would be free to block, throttle, favor or discriminate against traffic or extract tolls from any user for any reason or for no reason at all.”
Rosenworcel’s statement asserted “We cannot have a two-tiered Internet with fast lanes that speed the traffic of the privileged and leave the rest of us lagging behind. We cannot have gatekeepers who tell us what we can and cannot do and where we can and cannot go online. And we do not need blocking, throttling, and paid prioritization schemes that undermine the Internet as we know it.”
Commissioner Ajit Pai, who opposed the vote, issued an oral statement asserting:
“Judicial precedent makes clear that the FCC simply does not have the power to do this. In taking this step, the FCC usurps fundamental aspects of state sovereignty. And it disrupts the balance of power between the federal government and state governments that lies at the core of our constitutional system of government. Whatever the merits of any particular municipal broadband project—and to be clear, on this question I take no position, deferring to affected voters and elected officials—I do not believe this agency has the power to preempt.”
Pai’s opposition was joined by Commissioner Michael O’Reilly, who added “while I see no need for net neutrality rules, I am far more troubled by the dangerous course that the Commission is now charting on Title II and the consequences it will have for broadband investment.”
The announcement also generated strong responses from Republican leaders in Congress. Senator John Thune (R-S.D.), chair of the House Commerce Committee, labeled the ruling as a “317-page power grab over the Internet.” In a floor speech, Senate Majority Leader Mitch McConnell (R-Ken.) criticized the ruling as a partisan measure and asserted that the FCC’s rules “strike a blow to the future of innovation in our country.”
There were some indications, however, that House Republicans are split on how to respond to the FCC announcement. Some are advocating adoption of a resolution of disapproval. Others are suggesting a more centrist effort to pass bipartisan net neutrality legislation that would replace the FCC regulations with an approach more palatable to Hill Republicans.
Meanwhile, FCC Chairman Tom Wheeler has agreed to appear before the House Oversight Committee on 17 March to answer charges that the White House has exercised inappropriate influence over the FCC, which is an independent agency of government.