September 22, 2014 - 12:29 pm
By Julie Veach | Deputy General Counsel

Last week was a big one in the Commission’s quest for the best approach to protect and promote an Open Internet.

Our public comment period ended on Monday . . . with more than 3.7 million comments and reply comments submitted by a public that is passionate about this issue. Many of these comments focused on potentially harmful effects of paid prioritization on innovation and free expression, among other values. On Tuesday and Friday, the Commission hosted 12 hours of discussions in the Open Internet Roundtables, including dialogue on the threats to an Open Internet and policies to address those threats, the scope of new Open Internet rules, proposed enhancements to existing transparency rules, the application of Open Internet rules to mobile broadband, the best ways to enforce Open Internet rules, and the technical aspects of ensuring an Open Internet.

On Wednesday, Chairman Wheeler testified before Congress and explained that all options are open and that, in particular, Title II is very much on the table. On the same day, the Senate Judiciary Committee held a hearing on the Open Internet.

At the week’s close, Chairman Wheeler emphasized that the Commission is looking for a rainbow of policy and legal proposals, rather than being confined to what he called limited “monochromatic” options.

In the wake of that week, and looking ahead to upcoming roundtables on economic theory and legal authority, it’s worth noting some of the ideas in the record that the Commission staff has identified as adding to the potential ways that an Open Internet can be preserved.

Commenters have suggested how Section 706 could be used. For example, AOL supports reclassification under Title II with substantive rules promulgated under Section 706. And AT&T has suggested paid prioritization could be banned under Section 706.

At the same time, the Commission has been presented with a number of variants on the use of Title II. Tim Wu and Tejas Narechania have made an important proposal of this kind, as has the Mozilla Foundation, which suggested in its reply comments that Title II be used to create a presumption that all paid prioritization arrangements are unlawful.

Some parties also have spoken positively of the benefits of both Section 706 and Title II. For example, a coalition of library and higher-education institutions has made proposals that build on these sources of legal authority—suggesting, among other ideas, a finding that paid prioritization arrangements presumptively violate the law under a standard of “Internet reasonableness”.

Among the witnesses at the Senate hearing last Wednesday was Nuala O’Conner of the Center for Democracy and Technology (CDT), who said that reclassification was a significant option but who also suggested that the Commission consider a “hybrid” approach combining the strengths of both Section 706 and Title II, which would employ Section 706 to protect consumers and other Internet access subscribers and Title II to protect edge providers.

A cross-bureau group of staff are reviewing these options as well as others in the record.  The robust discussion will continue in the weeks ahead, including in our last Open Internet Roundtable on October 7 that will specifically focus on theories of legal authority and the legal basis for the construction of Open Internet rules.