WASHINGTON — With more than 3.7 million comments in hand on network neutrality, the Federal Communications Commission last week closed the official comment period on new rules and now gets down to the task of deciding how to justify them.
That 3.7 million reported by the FCC is a record number, reflecting the divide over whether to use its regulatory authority under Section 706 or Title II of the Telecommunications Act, as well as the ability of network-neutrality activists to get their faithful to flood the FCC with, appropriately, online submissions.
The commission’s website was swamped by the flood, but the FCC’s managing director, Jon Wilkins, told Congress last week he was confident the FCC had not lost any submissions.
It is hard to tell just where the FCC will wind up on new rules. FCC chairman Tom Wheeler insisted last week, also to Congress, that Title II definitely remained on the table — politically, he could hardly have said otherwise — but he also warned that the FCC did not want to discourage the billions of dollars of innovation-driving capital that telecom companies have been investing in broadband.
The FCC’s Section 706 proposal, and the wiggle room it has allowed for commercially- reasonable paid priority, prompted a big blowback from edge providers, but unless Wheeler was going to reclassifym broadband service as a common-carrier service under Title II — still the nuclear option among ISPs — it is a federal court that suggested he could not simply ban discrimination.
Wheeler has set no timetable for new rules and, as he pointed out last week, most ISPs have pledged to adhere to the old rules and have terms-of-service and network- management pledges on the books to that effect.
Applying the rules to mobile broadband will also play a bigger role in the decision, given the growth of that sector since 2010. Paid priority continues to be raised in the context of the debate, but Wheeler has signaled that, while important, it is an issue for another day and docket.
The last time these issues came around, in 2010, then- FCC chairman Julius Genachowski brought both sides to the table to come up with the compromise rules the court eventually eviscerated. At press time, multiple sources said they had not yet heard of the FCC mounting a similar meeting-of-the-minds effort to come up with a compromise, but one suggested it was only a matter of time.
Activists not wanting a repeat of that legal smack-down will likely be harder to move away from a Title II position.
The FCC had no comment on the possibility of table talks this time around, but it is holding a series of roundtables with stakeholders, including public-access groups, and ex parte meetings that will continue until the rules are hammered out.