FCC on net neutrality: yes we can

What a difference a day makes. Earlier this week the net neutrality troops were wringing their hands at reports that the Federal Communications Commission planned to throw in the towel on the Open Internet—abandoning any effort to reclassify ISPs as common carriers, following a Federal court’s overthrow of the agency’s Order against Comcast.

But now it’s all smiles in response to Wall Street Journal and Washington Post stories indicating that, quite the contrary, FCC Chair Julius Genachowski plans to take something like that route.

Here’s part of Amy Schatz at the Journal‘s dispatch, which says that FCC staff are prepping Commissioners “on how they will propose to regulate Internet lines under rules that were written for traditional phone networks. Some of those rules won’t be applied to Internet networks, FCC officials say, but others will be used to enforce net neutrality, or regulations that require Internet providers to treat traffic equally and not slow or block websites.”

And Cecelia Kang at the Post has her own sources, who say Genachowski plans to take a “‘third way’ approach between a weak Title I and a needlessly burdensome Title II approach.”

Those are Titles I and II of the Communications Act, for civilians. Title I includes a definition of ISPs as “information services.” Title II classifies phone companies as common carriers. The target of this regulation would be ISPs, said the Post source. But they would enjoy “broad upfront forbearance and meaningful boundaries to guard against regulatory overreach.”

So what does all this mean? It might mean that the FCC plans to retain classification of ISPs as “information services,” as they are now, but add some of the non-discrimination language contained in Title II to the mix.

The forebearance business might mean that ISPs could petition for regulatory relief on this front if they could prove the existence of sufficient competition in their area. That’s what the big telcos get when it comes to line sharing.

All viable options

But why, you are doubtless wondering, did the agency earlier leak sources suggesting that they were pulling out of the net neutrality game altogether? It might have been a trial balloon. If so, several members of Congress pointedly shot it down today with a letter to the agency urging the FCC to keep the faith.

“We believe that it is essential for the Commission to have oversight over these aspects of broadband policy, because they are vitally important to consumers and our growing digital economy. For this reason, in the near term, we want the agency to use all of its existing authority to protect consumers and pursue the broad objectives of the National Broadband Plan,” wrote Rep. Henry Waxman (D-CA) and Senator Jay Rockefeller (D-WV).

“To accomplish these objectives, the Commission should consider all viable options. This includes a change in classification, provided that doing so entails a light regulatory touch, with appropriate use of forbearance authority.”

Devil in the details

Among those cautiously relieved at the latest news is Free Press, but the reform group wants to see the fine print.

“The FCC is sending a clear signal that they are backing away from the cliff,” declared Josh Silver. “It appears they are charting a path toward a sensible broadband policy framework that will protect consumers and promote universal access. This is extremely welcome news. We reserve judgment, however, on whether the FCC has gone far enough to protect consumers with this new proposal.”

Less happy about this development, of course, are net neutrality foes such as Randolph May of the Free State Foundation, who had Genachowski likened to a frontier wagon master in his last statement on the issue. Now he says he’s waiting for details, too.

“I won’t believe that Genachowski’s going to propose regulating Internet services like legacy telephone services until I hear him say it with my own ears,” May declared. “The turn-about in Internet policy would be radical. It would be a mistake of historic proportions.”

The question of whether this is actually a big turnaround has already become something of an interesting debate, with some scholars suggesting that it’s only been very recently that the agency abandoned Title II as an option for ISPs.

Not senior Republican Robert M. McDowell, who has posted an interesting letter to Waxman and Rockefeller suggesting that the FCC never put ISP service under the Title II umbrella, even before its Cable Modem Order of 2002.

Expect plenty of this sort of argument over the coming months, now that the ground is laid for full-on common carrier regulation of public Internet access.