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FCC Chairman Says His Agency Will Work To Restore Net Neutrality

In a speech last week at the Univeristy of Colorado Law School, the Chairman of the Federal Communications Commission (FCC) discussed the need to restore Net Neutrality rules. MediaPost explained the problem:

"In January, the D.C. Circuit Court of Appeals gutted the FCC's net neutrality rules, which prohibited broadband providers from blocking lawful content or apps. The court ruled that the FCC couldn't impose common carrier regulations on broadband providers, given that the agency classified broadband as an “information” service in 2002. Neutrality advocates now say the FCC must first reclassify broadband as a telecommunication service if the agency wants to impose neutrality rules that will stand up in court. That way, broadband providers will be subject to the same common carrier rules that require telephone companies to put through all calls."

Portions of the speech by FCC Chairman Tom Wheeler:

"The Network Compact—universal accessibility, interconnection, public safety, and consumer protection—constitute the things we have to promote and protect if we are to be faithful to the public interest imperative. When being offline in America means being unable to participate fully in our economy and our society, it is imperative that the Commission work to ensure that every American has access to affordable broadband."

Chairman Wheeleer said this about the recent court decision:

"The most obvious case where the Commission must act anew is net neutrality.
In its Verizon v. FCC decision, the Court of Appeals invited the Commission to act to preserve a free and open Internet. I accept that invitation, and in the coming days, I will be outlining how I propose to proceed... First, the Court has ruled that the FCC has the legal authority to issue enforceable rules of the road to preserve Internet freedom and openness. It affirmed that Section 706 of the Telecommunications Act of 1996 gives the FCC authority to encourage broadband deployment by, among other things, removing barriers to infrastructure deployment and promoting competition. It also found that the goals of the Open Internet Order are within the scope of authority granted to the Commission. The court opinion specifically included that the Commission was justified in concluding that an open Internet would further the interest of broadband deployment by enabling the virtuous cycle of innovation that unites the long-term interests of end-users, broadband networks and edge-providers... What remains open is not jurisdiction, but rather the best path to securing the public interest..."

We will see if the FCC makes good on the Chairman's words. Read the full text of Chairman Wheeler's speech (Adobe PDF), and here.


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Chanson de Roland

The D.C. Circuit Court of Appeals (Court) also invited the FCC to properly invoke its jurisdiction to impose net neutrality regulations by reclassifying the ISPs as telecommunication providers, instead of their present classification as information services. In its opinion, the Court indicated that it struck down the FCC's net neutrality regulations, because it had classified the ISPs as information services. The Court's dicta implied that it would not have struck down the FCC's net neutrality rules, if the FCC had classified the ISPs as telecommunication services.

So why doesn't the FCC simply reclassify ISPs as telecommunication services? There should be three votes out of five on the FCC to do that, along with Chairman Wheeler's vote and the two other Democrats. But there seems to be two things stopping the FCC from reclassifying ISPs as telecommunication services. The first, unsurprisingly, is opposition from Republicans in the U.S. House and Senate.

But the other hindrance is a surprise: Both the Obama Administration and Chairman Wheeler, who is an Obama appointee, have been reluctant to advocate for reclassifying ISPs as telecommunications providers. If they both want to guarantee net neutrality, why is that? Though House Republican majority would vote to override reclassification of the ISPs as telecommunication providers, the Senate Democratic majority could be expected not to also go along with that, and even if the Senate did also vote to override reclassification of ISPs as telecommunication services, President Obama could veto that override, which would then require a 2/3 vote of the House and Senate to override his veto.

So Chairman Wheeler should have the votes on the FCC to reclassify ISPs as telecommunications providers, and the President should have the votes in the Senate to sustain that reclassification, or, if necessary, he should have the votes to sustain his veto. So why doesn't Chairman Wheeler proceed to reclassify the ISPs as telecommunications providers and then restore the FCC's net neutrality regulations?

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