Net Neutrality – “Fast Lane” Still on the Table

May 15, 2014. Is it “the end of the Internet as we know it?” — Sen. Al Franken. Answer: Maybe yes, maybe no.

Today, the FCC voted 3-2 along party lines to accept a provisional set of rules meant to protect Net Neutrality.This proposal did not move to reclassify broadband under Title II, and it left many important issues up for debate.

The key issue of whether “paid prioritization,” or “fast lanes,” where Content Providers could pay ISPs for priority is now up for public comment. Here is the link for the full text of the proposal http://transition.fcc.gov/Daily_Releases/Daily_Business/2014/db0515/FCC-14-61A1.pdf

Some key points for debate are whether the FCC should: 1) completely bar paid prioritization “fast lanes;” 2) apply the rules to cellular service in addition to fixed broadband; and 3) reclassify broadband as a telecommunications service under Title II (allowing strong “common carrier” type regulation).

As we’ve previously discussed, classifying broadband as a telecommunications service would provide the FCC authority to regulate broadband under Title II like a “common carrier.” Instead of moving for reclassification, which seems to be what is really needed in the wake of the Comcast and Verizon decisions, the current proposal may rest on Section 706 of the Telecommunications Act, which provides the FCC with limited authority to enforce net neutrality rules.

While moving to “Title II” would provide stronger regulatory powers, it is fraught with problems and sure to bring the “fury” of the Cable Giants. Opponents to stronger regulation argue that such a move would stifle innovation and investment in broadband. Some also argue all that is needed are strong “anti-discrimination” rules to keep “watch.”

With all that is being considered, some may find comfort in Chairman Wheeler’s statements: “I will not allow the national asset of an open Internet to be compromised…[t]here is one Internet, not a fast Internet or a slow Internet. I don’t like to see that the Internet could be defined by the haves and the have nots. Privileging some content to the disadvantage of others is unacceptable.”

If the past few weeks are any indication, keeping the pressure on the FCC is the best way to keep the Internet open, avoid a two class system, and prevent destruction of the powerful tool we’ve come to rely on.

So, in sum, we didn’t get reclassification under Title II, and “fast lanes” are still on the table. Time to get involved and follow the next few months of comments. These comments and the reply will define the scope of the new Net Neutrality Rules.