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FCC Chair Cracks Door Open To Reclassifying Broadband As A Public Utility

Publication Date: 
May 12, 2014
Ars Technica
Jon Brodkin

Professor Barbara van Schewick and student fellow Morgan Weiland comment on recent FCC net neutrality proposals for Ars Technica. 

Federal Communications Commission Chairman Tom Wheeler isn’t abandoning his proposal to let ISPs charge Web services for access to Internet “fast lanes.”

But he will ask the public whether Internet service should be reclassified as a common carrier service and whether paid prioritization deals should be banned, The Wall Street Journal reported last night.


Van Schewick and Weiland cast doubt on this, pointing to the federal appeals court decision that overturned the FCC’s previous net neutrality rules.

“[T]he Chairman can’t deliver on this, because requiring ISPs to make the same terms available to everybody is impossible under Section 706,” they wrote. “Forcing carriers to treat like entities alike is the essence of common carrier rules. To be upheld under Section 706, any rules need to 'leave sufficient room for individualized bargaining and discrimination in terms,’ or they will 'run afoul of the statutory prohibitions on common carrier treatment.'"

Van Schewick and Weiland concluded that the revision of the NPRM is a "significant step in the right direction, but [there is] still a long way to go."

"If we want to protect the Internet as a platform for free speech, application innovation, and economic growth, we need to ban pay-to-play access fees and adopt a bright-line non-discrimination rule that bans discrimination against applications or classes of applications," they wrote. "Users, entrepreneurs, investors, and public interest groups have already moved the debate in the right direction, getting reclassification off the table and into the NPRM. If we want an open Internet and the rules necessary to preserve it, we have to continue to make our voices heard and work hard to educate and convince the FCC, the White House, and members of Congress. The future of the Internet depends on it."