FCC Hosts Legal Debate Over Net Neutrality Authority

Hears from Fans of Title II, Sec. 706

The FCC's final day of network neutrality forums focused on legal options for restoring new rules, so Title II vs. Sec. 706 got a lot of attention, but so did various hybrid models—proposed by AT&T, Rep. Henry Waxman (D-Calif.), Mozilla and others--that would replace the "vs." with an ampersand.

FCC Chairman Tom Wheeler signaled from the outset of the forum that, while he didn't mind debate, he did not want the parties retreating into their corners and shouting their talking points. There was no shouting, though there was some impassioned pleas not to let comedian John Oliver or Netflix define the debate, and a Nebraska public service commissioner who invoking Larry the Cable Guy, sternly dressed down the lawyers and told them to "get 'er done" [rules preventing blocking and prioritizing) for the sake of consumers.

Wheeler also advised that miracles could happen when the two sides "dialog." There were no miracles at the forum, but plenty of dialog, particularly about hybrid 706/Title II approaches that would define the business-to-business relationship between ISP's and edge providers as a telecom service subject to Title II, and the relationship between ISP and consumer as an information service under Sec. 706.

Wheeler echoed his statement at an early forum that he was looking for light, rather than heat, and FCC General Counsel Jonathan Sallet, who co-moderated the forum, said the goal was to turn that light into law.

Sallet framed the debate with his observation that he thought the D.C. federal court that had overturned the 2010 Open Internet had given the FCC "substantive power" under Sec. 706 to protect the virtuous cycle of edge providers reaching consumers, and network providers thus incented to get broadband to more of those consumers.

But he also pointed out the court recognized that ISP's could be a threat to that cycle.

Wheeler has proposed a Sec. 706 approach to the new rules that would disallow blocking but allow for commercially reasonable discrimination beyond a baseline of service. The court signaled that a flat ban on prioritization would be hard to sustain under Sec. 706 because it smacked of common carriage (Title II) regulation.

Fans of bright-line rules did not appear to be swayed to their opponents’ positions that those were too inflexible and a case-by-case approach was needed. Foes of Title II did not appear convinced that a hybrid approach where some or all of Title II regs were not applied, or where the ISP/edge provider relationship was classified under Title II but ISP-to-consumer was under 706 got around their basic problems with Title II.

But they gave the FCC plenty to chew on as it tries to come up with new regs that will pass court muster and restore the no-blocking and no-unreasonable discrimination rules thrown out by the U.S. Court of Appeals for the D. C. Circuit.