“Wednesday’s press reports of the new network neutrality rules proposed by FCC Chairman Wheeler have been met with anger and confusion. According to the Wall Street Journal, “[r]egulators are proposing new rules on Internet traffic that would allow broadband providers to charge companies a premium for access to their fastest lanes. […] [T]he proposal would […] allow providers to give preferential treatment to traffic from some content providers, as long as such arrangements are available on ‘commercially reasonable’ terms for all interested content companies. Whether the terms are commercially reasonable would be decided by the FCC on a case-by-case basis.” The press, public interest groups and network neutrality proponents responded immediately: “FCC proposal would destroy net neutrality” (The Verge); FCC Proposal for a Payola Internet Would End Net Neutrality” (Free Press); “Goodbye, Net Neutrality; Hello, Net Discrimination” (Tim Wu); “This is not net neutrality.” (Public Knowledge). Yet, in a blog post yesterday, Chairman Wheeler explained that accounts “that the earlier policies of the Commission have been abandoned” are “incorrect.” Who is right? Do the proposed rules abandon earlier FCC policies on access fees? And if yes, should we care? This blog post answers these questions. It makes four points:
- Allowing access fees is a significant reversal from the FCC’s earlier policies as set forth in the Open Internet Order.
- Section 706 of the Telecommunications Act requires the FCC to allow access fees.
- Allowing access fees is bad policy.
- If the FCC is serious about protecting the Open Internet, it needs to start asking real questions about reclassification in its upcoming Notice of Proposed Rulemaking…”