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Image by Leonardo Rizzi on Flickr
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FCC Chair Tom Wheeler said in a statement today that the FCC won’t challenge the appellate court ruling in Verizon v. FCC that struck down key parts of the commission’s Open Internet Order, which was designed to ensure net neutrality. However, he said that the FCC is interested in preserving net neutrality going forward, just on a case-by-case basis.

At its core, net neutrality is the idea that the internet should serve as an open pipe for anyone to use equally.

The Open Internet Order was designed to codify that idea, so that internet providers couldn’t offer preferential treatment to certain services or certain uses. It’s key to the Internet as we know it, becuase those principles can help prevent, say, Comcast from offering YouTube users higher quality streaming while leaving Amazon’s streaming service to languish.

“Preserving the Internet as an open platform for innovation and expression while providing certainty and predictability in the marketplace is an important responsibility of this agency,” Wheeler said.

That’s key for users and entrepreneurs, as Wheeler noted in his statement. If internet providers move away from net neutrality, it means startups that require large amounts of bandwidth for their products to work could be stuck having to pay big broadband companies or be unable to take on more established players who could fork out the cash to let users get their product faster.

Parts of the Open Internet Order relating to net neutrality were struck down last month because a panel of judges from the United States Court of Appeals for the District of Columbia said that the FCC had imposed “common carrier” rules on broadband providers without classifying them as such. But rather than classify internet providers as common carriers, Wheeler said that the FCC will take a more piecemeal approach, at least for now.

He said that the agency would use its authority under Section 706 of the Telecommunications Act of 1996 to impose regulations, calling on the Commission to create new rules to meet three goals. Here’s the relevant piece from his statement:

  • Enforce and enhance the transparency rule. The Court of Appeals has affirmed the Open Internet Order’s transparency rule, which requires that network operators disclose how they manage Internet traffic. This is more significant than many people may realize. We should consider ways to make that rule even more effective. For example, an explicit purpose of the rule is to afford edge providers the technical information they need to create and maintain their products and services as well as to assess the risks and benefits of embarking on new projects.
  • Fulfill the “no blocking” goal. The D.C. Circuit recognized the importance of the Open Internet Order’s ban on blocking Internet traffic, but ruled that the Commission had not provided sufficient legal rationale for its existence. We will carefully consider how, consistent with the court opinion, we can ensure that edge providers are not unfairly blocked, explicitly or implicitly, from reaching consumers, as well as ensuring that consumers can continue to access any lawful content and services they choose.
  • Fulfill the goals of the non-discrimination rule. We will carefully consider how Section 706 might be used to protect and promote an Open Internet consistent with the D.C. Circuit’s opinion and its earlier affirmance of our Data Roaming Order. Thus, we will consider (1) setting an enforceable legal standard that provides guidance and predictability to edge providers, consumers, and broadband providers alike; (2) evaluating on a case-by-case basis whether that standard is met; and (3) identifying key behaviors by broadband providers that the Commission would view with particular skepticism.

Wheeler, who has previously served as a lobbyist for the cable and wireless industries, said that he wouldn’t take common carrier regulation off the table just yet, but they were not a part of his proposed rules.

So, are the suggested regulations going to be good enough to ensure that everyone can still watch House of Cards in HD? It’s hard to say. The FCC based its ability to implement the Open Internet Order on authority given to the commission under Section 706, and the court struck that down.

“It looks like we’re headed for a repeat of the last four years,” Mitch Stoltz, a Staff Attorney for the Electronic Frontier Foundation, said in a phone interview.

It’s entirely possible that the FCC could go through all the work of making new net neutrality rules, just to get them thrown out by the court again.

While the FCC is working to develop new rules, Wheeler said that he is counting on broadband providers to keep up commitments to an open internet that companies made following the ruling.

Following Wheeler’s announcement, Verizon reiterated its stated commitment to maintaining an open internet, even without net neutrality regulation.

“Verizon remains committed to an open Internet that provides consumers with competitive choices and unblocked access to lawful websites and content when, where, and how they want. We have always focused on providing our customers with the services and experience they want, and this focus has not changed,” Ed McFadden, the company’s Executive Director of Communications, said in a statement emailed to GeekWire.

Consumer groups weren’t pleased by Wheeler’s insistence on avoiding common carrier regulation, though. Craig Aaron, the President and CEO of advocacy group Free Press, blasted the chair’s decision in a statement today.

“The FCC can’t protect free speech and prevent discrimination under the so-called Section 706 authority discussed in today’s announcement. Last month’s court decision made that crystal clear. Section 706 doesn’t work for Net Neutrality or any of the FCC’s stated policy goals. If the agency really wants to stop censorship, discrimination and website blocking, it must reclassify broadband as a telecommunications service under Title II of the Communications Act.

“The FCC’s reluctance to reverse its past mistakes is extremely short-sighted. More than that, it’s a political choice driven by the industry’s sustained campaign to demonize the important American principle of common carriage, which protects our right to have our communications carried free from discrimination. That freedom is essential to our right to speak.

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