FCC defends new Net neutrality proposal

The agency will ask the public for comments on pay-for-priority agreements, an official says

A new Net neutrality proposal from the U.S. Federal Communications Commission meets the goals of past efforts and does not destroy open Internet principles, as critics have feared, FCC officials said Thursday.

Critics have said the new proposal, to be released Thursday, would gut Net neutrality principles because it would allow some traffic management. But the proposed rulemaking will ask for public input about whether so-called pay-for-priority traffic agreements between broadband carriers and Web content providers are commercially reasonable, an FCC official said.

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The new proposal, on the agenda during the FCC's May 15 meeting, will restore Net neutrality rules after an appeals court struck down the agency's old rules in January, while following a roadmap to Net neutrality regulation that the court set out, FCC officials said. The FCC will vote on opening up the proposal to public comment during that meeting.

News reports saying the new proposal is gutting Net neutrality rules "are flat out wrong," FCC Chairman Tom Wheeler said in a statement. The new open Internet proposal "will restore the concepts of Net neutrality consistent with the court's ruling in January."

The FCC has made no "turnaround in policy," as some commentators have suggested, Wheeler added.

"To be very direct, the proposal would establish that behavior harmful to consumers or competition by limiting the openness of the Internet will not be permitted," Wheeler added in a blog post.

The new proposal includes rules saying broadband providers can't block legal Web traffic, and broadband providers "may not act in a commercially unreasonable manner to harm the Internet, including favoring the traffic from an affiliated entity," he added.

Wheeler wants the new Net neutrality rules in place by the end of the year, he said.

In January, the U.S. Court of Appeals for the District of Columbia Circuit struck down the FCC's 2010 Net neutrality rules, but the court said the agency could pass new rules using authority from a section of the Telecommunications Act that gives the FCC authority to ensure broadband deployment.

The FCC proposal would look at traffic management practices on a case-by-case basis, because that's what's required by the court, an FCC official said. The agency will look hard at pay-for-priority agreements, but it hasn't proposed banning them all, because some such agreements -- like prioritization for online heart-monitor services -- may be appropriate, the official said.

The court's ruling said the FCC would stop harmful conduct by broadband providers if it's found to not be commercially reasonable, Wheeler said in his blog post.

"Acting within the constraints of the court's decision, the notice will propose rules that establish a high bar for what is 'commercially reasonable,'" he wrote. "In addition, the notice will seek ideas on other approaches to achieve this important goal consistent with the court's decision."

Several digital rights groups protested the new proposal, saying it would weaken Net neutrality protections.

The proposed rules would "undermine the open Internet by allowing Internet Service Providers to extort fees out of Web platforms, and thereby advantage certain services -- those that are established and wealthy enough to pay the fees, and those that have financial ties to or are otherwise favored by the ISPs -- over other platforms," David Segal, executive director of digital rights group Demand Progress, said by email. "ISPs would be able to pick and choose which services their customers are allowed to access with ease, and make it harder for them to use other services."

Criticisms of the proposal are based on a misconception that the FCC's original 2010 Net neutrality rule prohibited all traffic discrimination, an FCC official said. The new proposal is similar to the 2010 rule because the old rule prohibited unreasonable discrimination, while the new proposal would allow some commercially reasonable traffic shaping, he said.

During a briefing, reporters asked the FCC official whether a commercial peering agreement between Netflix and Comcast, reached in February, would receive FCC scrutiny under the commercially reasonable standard in the new rules. The agreement calls for Netflix to pay Comcast for faster and more reliable access to Comcast's subscribers.

Internet traffic peering and exchange agreements aren't covered by the Net neutrality proposal, meaning the Netflix and Comcast deal wouldn't raise FCC Net neutrality concerns, the official said.

Asked why the FCC doesn't reclassify broadband as a regulated, common-carrier service, an FCC official said the court's roadmap using the broadband deployment section of the Telecom Act was a quicker way to restore Net neutrality rules.

Grant Gross covers technology and telecom policy in the U.S. government for The IDG News Service. Follow Grant on Twitter at GrantGross. Grant's email address is grant_gross@idg.com.


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