FCC's Wheeler said to mull hybrid approach to net neutrality

The U.S. Federal Communications Commission appears set to reclassify broadband so that it comes under the agency’s authority, but without explicitly prohibiting special access deals between broadband and content companies, according to a news report.

FCC Chairman Tom Wheeler is mulling this hybrid answer to the knotty “net neutrality” issue, and his proposal would still require a vote of the full five-member commission, The Wall Street Journal reported on Thursday. Broadband providers may also challenge in court the move to give the FCC more authority.

Supporters of the principle of equal access to all Internet traffic have pressed the FCC to reclassify broadband as common carrier under the Communications Act. Title II of the Act already defines telephone companies as common carriers, and requires them to deliver service at “just and reasonable” rates and interconnect with each other.

By extending its authority, the FCC would keep residual rights to block any deal it considers uncompetitive, the Journal said.

The FCC adopted in 2010 the Open Internet Order, which prohibited broadband providers from blocking or unreasonably discriminating against content providers or applications for network access.

The net neutrality issue came to the forefront in January this year after the U.S. Court of Appeals for the District of Columbia Circuit largely overruled the Open Internet Order in a lawsuit brought by Verizon. The court said the FCC has “general authority” to regulate how broadband providers deal with network traffic under Section 706 of the Telecommunications Act of 1996, which deals with promoting innovation and competition.

Wheeler proposed in May a plan that would allow “commercially reasonable” traffic management, but would not reclassify broadband.

Under the new plan said to be under consideration by the FCC chief, the back-end broadband service, through which broadband providers serve as a route for websites to distribute content, would be classified as a common carrier to give the FCC the authority to monitor agreements between content and broadband providers, WSJ said.

The FCC could not be immediately reached for comment.

The plan is, however, likely to face legal challenges. In a submission Wednesday to the FCC earlier this week, Verizon warned that “any effort to reclassify broadband Internet access service would have significant legal vulnerabilities.” Supporters of the Title II route to resolve the current debate have assumed that the FCC has the broad authority simply to declare broadband Internet access service to be a common carrier telecommunications service, it added.

U.S. lawmakers have also looked at the various options available to the FCC to ensure net neutrality, some of which are similar to the one said to be under consideration by Wheeler.

Representative Anna Eshoo, a California Democrat, wrote to the FCC earlier this month, suggesting a ”light-touch” reclassification plan, that would not enforce the entirety of Title II regulations, but would at the minimum enforce a section which makes “any unjust or unreasonable discrimination” unlawful.

Senate Judiciary Committee Chairman Patrick Leahy wrote this month letters to Comcast, AT&T, Verizon, Time Warner Cable, and Charter Communications, asking them to take a stand against fast lanes on the Internet. “Allowing the Internet to become a two-tiered system of ‘haves’ and ‘have-nots,’ controlled by a small number of corporate gatekeepers, would destroy everything that has made it one of the greatest innovations in human history,” the Vermont Democrat wrote.

Verizon said in a public response Wednesday that it “is on record numerous times as saying that it has no plans to undertake the hypothetical ‘paid prioritization’ business model.” The FCC has authority under Section 706 of the Telecommunications Act to ban forms of paid prioritization that it believes could be harmful to competition or consumers, it added. Comcast and AT&T are also reported to have promised in replies to Leahy not to have Internet fast lanes.

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