Net neutrality order could get last-minute change on peering disputes

A Democrat on the Federal Communications Commission reportedly objects to a portion of the FCC’s net neutrality order, potentially paving the way for a last-minute change to preserve the Democratic majority expected to vote in favor of the plan.

According to The Hill’s sources, Commissioner Mignon Clyburn objects to part of the order covering the relationship between Internet service providers like Comcast and “edge providers,” companies that build websites or deliver content and applications over the Internet. Clyburn apparently shares the legal concerns of Google, advocacy groups such as Free Press and the Open Technology Institute, and even AT&T.

FCC Chairman Tom Wheeler’s plan would classify the relationship between ISPs and edge providers as a common carrier service in order to assert jurisdiction over interconnection or “peering” disputes. But some net neutrality advocates and opponents alike say there isn’t a “service” offered to edge providers, that the only service ISPs offer is to Internet users.

The FCC order also classifies the service ISPs sell to Internet users as a common carrier service, and net neutrality advocates argue that this is enough to enforce net neutrality rules and govern interconnection disputes. Classifying the ISP-edge provider relationship as common carriage would only raise legal problems, they say.

Besides potentially weakening the rules by making them more vulnerable to legal challenge, Google further argued that a new classification for the ISP-edge provider relationship could give support to a “sender pays” model in which ISPs could charge content providers to send traffic over the Internet.

Although The Hill report says Clyburn’s objection could make it harder for the FCC to regulate interconnection disputes, that isn’t necessarily the case. If interconnection disputes harm service to Internet users, as happened when Netflix fought ISPs over interconnection payments, the FCC could take action by virtue of having classified retail Internet service as common carriage, both Google and Free Press argued.

The FCC is scheduled to vote on the rules Thursday. Commissioners can vote in favor of an item while dissenting in part, but the Democratic commissioners could come to a compromise before the meeting. The two Republicans on the commission oppose the net neutrality order, making a 3-2 vote likely.

Clyburn did not comment to The Hill. Her office sent a statement to Ars, saying, “Commissioner Clyburn has not and will not comment in advance on any potential changes to the Open Internet Order out of respect for the deliberative process. Any reports about policy or position shifts when it comes to the item have not been verified or confirmed by her office. Commissioner Clyburn continues to advocate for strong open Internet protections for consumers and looks forward to voting the item on Thursday.”

Clyburn spoke with reporters at a trade show today and said she supports Wheeler’s objectives. “I am confident that the direction and the vote that we will take Thursday will reinforce all of these objectives and more,” she said, according to the Huffington Post.