12 Communications Act of 1934 (as amended) Title 2: FCC authority over common carrier services (notably landline telephony) Title 3: FCC authority over radio transmissions (including cellular) Title 4: FCC authority over cable tv transmissions Ancillary authority FCC may perform any and all acts, make such rules and regulations, and issue such orders as may be necessary in the execution of its functions Communications Act of 1996 Section 706 (new) FCC shall encourage the deployment of advanced telecommunications capability to all Americans by utilizing price cap regulation, regulatory forbearance, measures that promote competition or other regulating methods Are these new authorities? Or just telling FCC to use the authorities it already has (e.g., under Titles 2,3,4) Defines information service providers and specifically exempts them from Title 2
14 Timeline up to January, : Comcast blocks some end-user functions (e.g., peerto-peer) 2008: FCC orders it to stop, based on mostly ancillary and a little bit of Sec. 706 authorities 2010: Court (DC Circuit) overrules FCC but supports idea of using 706 somehow 2010: FCC issues the Open Internet Order disclosure, anti-blocking, anti-discrimination 2010: Verizon sues FCC 2014: DC Circuit again FCC, you specifically ruled that broadband was an information service provider So they re exempt from Title 2, and you can t use 706 to, in essence, bring them under it I told you last time what to do, and you didn t listen!
15 What happened in 2014? May: Wheeler Proposal #1 Don t reclassify anything as a common carrier, but somehow negotiate that ISPs should play nicely Paid prioritization is allowed if commercially reasonable [meaning what?] But slowing down is not allowed [huh?] June: John Oliver segment brings down FCC s public comment server October: Obama statement strongly endorses net neutrality via Title 2 Wheeler says he agrees with the President October: Wheeler Proposal #2 ( hybrid approach ) Front end unchanged as an information service provider Back end reclassified as common carrier Some paid prioritization still allowed, but now can be easily regulated November: Obama repeats it again, more strongly December: Cisco, Intel, IBM, strongly urge no Title 2 reclassification
16 Wheeler Proposal #3 (to be voted Feb. 26) Everything reclassified as Title 2 Front end reclassified as Title 2 Back end to be reclassified automatically as Title 2 if any court says it needs to be ( just in case ) Mobile Internet reclassified as Title 2 no one thought that was even in play! Bright line rules no blocking no throttling no paid prioritization but allows reasonable network management Non-Internet data services may not undermine open Internet rules disclosure obligations on regulated companies Interconnection agreements to be subject to scrutiny Forebearance specifically provided for in the statute won t regulate rates or bundling agreements [for now?]
17 Inquiring minds want to know Who are the winners and losers in the proposal? Is the public a winner? Is Netflix? Is Google? Is the economy? Is innovation? Are you? Will Title 2 regulation as now proposed diminish future investment? If so, by whom? What will happen if there is under-investment? Is there any actual evidence on these issues? Why did Wheeler think he could get the broadband providers to agree to a compromise without Title 2? How could FCC have enforced it? How did the White House manage to have such an influence, or did they? (FCC is an independent agency not under the President s control.) Purely by strength of argument, or by what politics? On what grounds will broadband providers sue to block this proposal? How might a moderate Democrat in Congress now want to amend the Communications Act? A moderate Republican? Fill in some history before For example, how did FCC come to classify the back end as an information service provider, not a common carrier? What is the history of the term common carrier? What was the historical need for such a term? By common sense (not legal cases) should the term apply to broadband? Could Judge Tatel have reasonably decided the 2010 and 2014 cases differently, or were his hands really tied? Will forebearance work? For how long? What circumstances might cause a future FCC to stop forebearing? Under the proposal can Netflix lay (or lease) its own private fiber to connect its streaming closer to its users? What could the ISP charge for the last mile connection? Could Netflix itself invest in new last mile connections to the home and deliver its streaming end-to-end? How? Could (and would) FCC regulate this? What are some examples of non-internet data services that could undermine open Internet rules? Can you invent one that would be hard for the FCC to assert authority over? Do you agree with the statement (WSJ op-ed): Were he in a more truthful mood, Mr. Wheeler would note that President Obama urged him toward utility regulation not because Mr. Obama gives two hoots about net neutrality but because of the issue s proven capacity to rile up tweet-addled millennials.
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