Mozilla executives have met twice with FCC General Counsel Jonathan Sallet in the past two weeks to talk about its proposal to create a hybrid title II/Sec. 706 approach to legally sustain new Open Internet rules, suggesting FCC Chairman Tom Wheeler may be rethinking his SEc. 706-only proposal.
The FCC has signaled that that is among the variations it is considering in the effort to recraft no-blocking and no-unreasonable discrimination rules thrown out by the U.S. Court of Appeals for the D.C. Circuit earlier this year.
Mozilla has suggested that the FCC treat ISP's connection for an implied fee of a remote end point (remote edge provider, or REP) to an individual subscriber as a Title II telecommunications service, and its connection for a fee to end users of all those REP's as a Sec. 706 information service.
under that regime, it suggests, the FCC could prevent blocking or throttling in the relationship between ISP's and edge providers under Title II, and prevent anti-competitive paid priority on the last-mile, consumer facing side under Sec. 706 by presuming paid priority to be a violation of the anti-unreasonal discrimination rule, but making it a rebuttable presumption with a high bar.
The D.C. Circuit’s holding "that broadband providers 'furnish a service to edge providers' has provided that the opportunity for such a hybrid response by the FCC in recrafting the rules, the Center for Democracy and Technology has argued as well. "It is appropriate for the Commission to consider this edge-facing service as a distinct offering warranting distinct analysis," says CDT, which also says that gives the FCC new impetus for applying nondiscrimination the rules to mobile broadband, which it did not due in the previous Open Internet order.
A story in The Wall Street Journal that the FCC was indeed redrafting the rules along the lines of the Mozilla proposal was not greeted warmly by Title II fan Free Press.
“This Frankenstein proposal is no treat for Internet users, and they shouldn’t be tricked," said Free Press President Craig Aaron. "No matter how you dress it up, any rules that don’t clearly restore the agency’s authority and prevent specialized fast lanes and paid prioritization aren’t real Net Neutrality. The good news is that the FCC seems to have abandoned the disastrous proposal it put out in May. But if its new rules look anything like the convoluted proposals submitted by Mozilla and the Center for Democracy and Technology (CDT), then they're still the wrong choice," he said.
“The Chairman has said that all Title II options are under serious consideration," said FCC spokesperson Kim Hart, "including proposals by Mozilla, CDT and others.”