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Summary:

The FCC announced its response to an explosive court decision that ended “net neutrality” last month: it will not appeal the decision, but scramble to impose new rules.

The Chairman of the Federal Communications Commission, Tom Wheeler, laid out several new proposals for network neutrality rules in a statement on Tuesday, also saying that the agency won’t appeal a court decision that struck down the FCC’s previous attempt at rule-making.

The statement, which comes amid reports that internet providers are slowing sites like Netflix, also said the FCC would explore ways to stop improper “blocking” and “discrimination.”

The decision to forgo an appeal is not surprising since the appeals court ruling was considered to be legally sound; in the decision, the DC Appeals Court pointed that the FCC had failed to invoke the proper legal authority when it applied the so-called “Open Internet Authority” to broadband providers.

Now, owing to its bungling of the earlier process, the agency is now tasked with putting the net neutrality genie back in the bottle. Wheeler signaled his intent to do so at several parts of the statement (emphasis mine):

I intend to accept that invitation by proposing rules that will meet the court’s test for preventing improper blocking of and discrimination among Internet traffic [...] 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 also stated that he had recently met with video start-ups, and said they will be unable to succeed if they are “unfairly prevented from harnessing the full power of the Internet.” He said this type of situation is why the FCC’s “exercise of its authority to protect an open Internet is important.”

Wheeler’s words, however, are unlikely to prevent much comfort to those alarmed by the specter of internet giants favoring certain websites over others, or forcing sites like Netflix and Google to pay extra to guarantee fast delivery speeds. This is because the rule-making process is slow and convoluted, and most broadband providers will be free to do what they like in the meantime.

As for the rules themselves, the Wheeler statement is short on specifics; it proposes “transparency” and a pledge to prevent “blocking” but does not espouse a general principle, favored by net neutrality advocates, of treating all internet traffic the same.

One source of consolation for net neutrality proponents is that Comcast, one of the most powerful broadband providers in the country, must abide by an order that requires it to respect net neutrality rules under 2018 as a result of its acquisition of content giant NBCUniversal.

An industry group, the National Cable and Telecommunications Association, appeared please with Wheeler’s move, issuing a statement:

“We look forward to working with Chairman Wheeler and the Commission on ensuring that American consumers will continue to enjoy a fast, robust and open Internet experience.  We continue to believe that the values of an open Internet can be preserved, while avoiding a damaging move to heavier regulation.”

Gabe Rottman of the ACLU suggested in a statement that the FCC may be able reassert its earlier authority: “Crucially, the commission kept open the option of reclassification, and it needs to take resolute action beyond today’s announcement to ensure that option becomes a reality.”

This story was updated several times to provide details of the Wheeler order and responses.

  1. Why can’t they appeal (even if it’s a long shot) and also move for new law/rules? This is our future.

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  2. This is a dark time.

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