October 27, 2014 - 4:15 pm
By Jon Sallet | General Counsel
Roger Sherman | Chief, Wireless Telecommunications Bureau
Julie Veach | Deputy General Counsel

Earlier this month, the Commission held the last in its series of six Open Internet Roundtables.  At each one of these roundtables—totaling over 20 hours— panelists with diverse viewpoints dove into many of the thorniest issues in this proceeding, responding to questions from the public, FCC moderators, and the Chairman.  The Chairman, Commissioners, and stakeholders have also engaged in vigorous discussions of these issues at events around the country.  All for the purpose identified by the Commission in its Open Internet NPRM:  to find the best approach to protect and promote Internet openness.

We listened and we learned.  With specific regard to the Roundtables, here are some key takeaways.  

We heard economists debating harms to Internet openness, including but not limited to broadband providers’ incentives and ability to engage in anti-competitive behavior.  We heard engineers describing Internet technologies, including current techniques for managing today’s networks.  And we heard enforcement experts discussing how to design an enforcement process for open Internet rules that balances certainty, flexibility, and access for all stakeholders. 

Each of us also personally moderated panels about the Commission’s legal authority and policy choices for fixed and mobile broadband services. 

At the legal roundtable, we heard considerable debate about the rainbow of legal options on which the Commission could base its Open Internet rules.  Some maintained that reclassifying the retail broadband service provides the strongest legal ground.  Others at the roundtable suggested that a “greenfield” classification of a service furnished by broadband providers to the edges of the network as a telecommunications service could be even easier to defend.  Some claimed the same about relying solely on Section 706.  Still others embraced hybrid approaches, such as using section 706 and Title II in tandem to support open Internet rules and Congressman Waxman’s proposal to reclassify the retail service under Title II but adopt substantive rules using Section 706.  But the end of the roundtables is not the end of the discussion:  we continue to benefit from ongoing public discussion and welcome filings that compare and contrast the different legal options.

The debates we heard at the mobile roundtable centered on whether mobile should be subject to the same kinds of rules that would apply to fixed broadband providers. That question raised issues of technology – for example some recent filings discuss the technical similarities and differences of mobile and fixed broadband, including what constitutes reasonable network management for mobile providers.  Also important is an on-going legal debate, questioning whether the Commission could interpret the statutory definition of Commercial Mobile  Service—the only mobile service subject to Title II regulation—to apply to a mobile broadband service that may not use the North American Numbering Plan.  We welcome additional thoughts about the network management of fixed and mobile broadband networks as well as the Commission’s legal authority to act in this area. 

Panelists at the opening roundtable, which focused on tailoring policy to harms, debated paid prioritization—a topic central to many comments in our record.  Some parties have urged a flat ban on these practices.  Others believe a presumption that paid prioritization violates the law would protect Internet openness.  This is a central issue:  how best can the Commission prevent harm to the virtuous circle of innovation, consumer demand, and broadband deployment, which unites the interests of consumers, edge providers, and other stakeholders?

The roundtables are now over.  But our pursuit of the best approach to protecting and promoting Internet openness continues.  We welcome further input on these issues and others as we work toward this goal.