U.S. telcos on Wednesday will ask Congress to alter the Communications Act – the law that the Federal Communications Commission (FCC) is consideri ng wielding in order to enforce its open Internet rules – in a bid to limit the watchdog’s oversight.
However, with the FCC due to vote on the matter on 26 February, there is insufficient time to amend the legislation.
"FCC chairman Tom Wheeler should hit the pause button on next month’s vote and let the elected representatives of the American people try to find common ground," said former FCC commissioner Robert McDowell, in an op-ed for The Wall Street Journal on Monday. "At the end of this constitutional process, all sides may be able to claim victory."
The FCC is close to a decision on whether to adopt a light-touch approach to regulating net neutrality – afforded by section 706 of the Telecommunications Act – or use Title II of the Communications Act, which would reclassify broadband providers as common carriers, rather than information services, subjecting them to stricter rules governing prices and how they manage traffic on their networks.
Lobbyists on both sides of the debate have made their voices heard loud and clear. Consumer advocates and over-the-top (OTT) companies want the FCC to use Title II to prevent big players from paying ISPs to prioritise their services and squeeze smaller players out of the market.
Meanwhile, telcos have repeatedly pointed out that they support the open Internet, and therefore using the Communications Act – drawn up in 1934 – is unnecessary, overbearing, and may hamper investment.
"Bringing down the blunt command-and-control instrument of Title II onto the Internet will cause collateral damage to America’s world-leading tech economy," claimed McDowell.
However, the pro-Title II group has some influential backers, not least of whom is President Obama.
The amendment, proposed late last week by Senator John Thune and Representative Fred Upton and du e to be discussed on Wednesday, seeks a compromise by adding open Internet rules to the Communications Act but not reclassifying broadband providers as common carriers. It would also block the FCC from using section 706 of the Telecommunications Act to regulate the Internet.
By allowing these changes to be made, "the FCC can attain its stated policy goals, be protected by legislative certainty, and bask in the glow of achieving statesmanlike bipartisan consensus," said McDowell.
The proposals received a cooler reception in some quarters though.
Consumer advocacy group Public Knowledge pointed out that the amendment still leaves the door open for telcos to discriminate against certain types of data traffic, and to prioritise traffic from what they consider ‘specialised services’. It would also see the FCC adopt a formal complaints procedure, which Public Knowledge claims would only benefit companies that can afford to complain, rather than enabling the watchdog to adequately enforce net neutrality.
"We appreciate the effort by Senator Thune and his colleagues to engage on these issues," said Harold Feld, SVP of Public Knowledge, in a statement last week. "While this represents a good faith step forward, it also takes several very real steps back…[It] certainly does not provide the kind of robust protection consumers need."
