Opinion: Possible ‘hybrid’ Net neutrality rules get chilly reception

Internet service providers, Web-based entrepreneurs and consumer groups are sharply divided over whether and how the Federal Communications Commission should try to preserve the Net’s status as an open, neutral platform for innovation.

Now, in trying to find a middle ground, FCC Chairman Tom Wheeler may be moving onto a more treacherous political and legal minefield. The maneuvering is yet another signal that Congress should craft neutrality rules specifically for broadband, rather than leaving the FCC to search for a way to do so under a law written before the first broadband lines reached consumers.

At issue is whether to treat broadband Internet service providers as “information-service providers� or “telecommunications carriers.� According to the Wall Street Journal’s Gautham Nagesh, Wheeler may try to do both.

Specifically, Nagesh reported that the chairman is warming to proposals floated by Mozilla and the Center for Democracy and Technology, among others, that would classify only one aspect of a broadband connection -- the delivery of data from websites and services to an ISP’s customers -- as a telecommunications service. That aspect would be subject to strict “common carrier� regulation under Title II of the Communications Act. Meanwhile, the Internet access service that ISPs provide to subscribers would continue to be treated as an information service, subject to the less rigorous rules that the FCC can impose under Section 706 of the Communications Act.

The U.S. Court of Appeals for the District of Columbia Circuit planted the seed for this approach in January, when it threw out most of the neutrality rules the commission had adopted in 2010. According to Judge David S. Tatel, broadband ISPs provide two services: one to their subscribers, which connects them to whatever site or service they choose, and another to sites and services, connecting them to the ISP’s customers.

Tatel provided two other important pieces of guidance to the commission. First he said the FCC had the authority under Section 706 to impose Net neutrality rules. But second he said such rules couldn’t require ISPs to “offer service indiscriminately and on general terms,� but rather had to allow room for case-by-case evaluation. That’s why he rejected rules the FCC adopted in 2010 that flatly prohibited ISPs from blocking or discriminating unreasonably against lawful content and services.

Tatel’s opinion suggested two paths for the FCC to take: reclassify broadband as a telecommunications service, or redraw the rules under Section 706 to limit but not ban prioritization and blocking. In the face of fierce resistance from ISPs and Republicans to the former, Wheeler initially proposed using the latter to create a barrier to “commercially unreasonable� deals between ISPs and “edge providers.�

Wheeler argued that the FCC could block any and all harmful forms of paid prioritization under Section 706, but he found few takers for that argument. Instead, Net neutrality advocates insisted that the FCC block all paid prioritizaion, and that the only way to do so was to apply Title II.

The chairman’s latest approach still may leave room for some prioritization, Nagesh reported. That wouldn’t be a huge leap from the 2010 rules, which allowed ISPs to create managed services (such as pay-TV channels) separate from their broadband Internet offerings.

One thing it wouldn’t do, though, is satisfy many people. In their comments on Wheeler’s original proposal, ISPs urged the FCC not to apply Title II to any aspect of broadband. And on the other side, advocates of the most stringent Net neutrality rules greeted reports of Wheeler’s new approach Friday with disdain.

For example, MoveOn.org, in typically thoughtful fashion, declared that “Wheeler’s approach ... would undermine Net Neutrality, would betray President Obama’s calls to ban paid prioritization, and would be unacceptable.�

Similarly, Craig Aaron of the take-no-prisoners advocacy group Free Press opined, “Chairman Wheeler can’t wave a wand, change the law, and pretend to break the Internet in two. But these schemes suggest just that: dividing the Internet to protect corporations sending information, but not the people receiving it. Such an untested, too-clever-by-half approach is bad law and a bad idea. It will not survive in court, and it is clearly inferior to reclassifying broadband under Title II of the Communications Act.�

So why would Wheeler even consider going this route?

One reason is that the bifurcated approach might make it easier for the FCC to justify reversing its decision in the early 2000s to treat broadband access as an information service not subject to Title II. The only things that have changed since then are the broadband connections have become ubiquitous, and so have bandwidth-hogging video streams from the likes of Netflix, Vudu and Hulu.

Making the rules more defensible in court is no small thing, considering that ISPs will almost certainly sue the FCC if it invokes Title II. But as Aaron notes, the commission may have trouble persuading a federal appeals panel that the service ISPs provide to content and service providers online fits under Title II, which Congress applied only to telecommunications services offered “for a fee.� ISPs don’t charge websites and services a fee to connect to broadband users, and the whole point of Net neutrality rules is to keep them from doing so.

The commission’s struggle to craft Net neutrality rules reflects more than just the usual clash between regulators and the companies they regulate. The real problem is that Congress didn’t anticipate the need for such rules.

The last time lawmakers updated the Communications Act was in 1996, when thousands of dial-up ISPs were competing for subscribers through the phone companies’ copper lines. Those lines were regulated under Title II, while Internet access services were not. Lawmakers designed the 1996 act to encourage vigorous competition in all forms of communications, envisioning a host of new phone and video services coming to market.

Those services have indeed arrived, typically as Web-based offerings. Competition between wired ISPs, however, has all but vanished since the FCC classified broadband as an information service. Most U.S. homes have two options for broadband lines: one from their local phone company, and one from their local cable TV operator. It’s conceivable that mobile and fixed wireless networks could emerge as effective competitors to cable modems and DSL services, but they’re not there yet -- and they won’t be as along as mobile operators continue to impose strict limits on data usage.

In light of the phone-cable broadband duopoly, Congress should update the Communications Act again to give the FCC the authority to stop ISPs from blocking or discriminating unreasonably against lawful content, apps and services. The FCC shouldn’t have to try to adapt rules that date back to the 1930s to the 21st century’s most important communications pipeline.

Granted, the likelihood of a Republican Congress giving a federal agency explicit authority to regulate the Internet is slim. But the alternative is to watch the FCC keep applying its authority over dial tones and communications infrastructure to the neutrality puzzle until it finds a set of rules that the courts will approve. That thought should motivate lawmakers in both parties to act. And if it doesn’t, the millions of people who bombarded the FCC with demands for strong Net neutrality rules should apply that same pressure to their elected representatives.

Follow Healey’s intermittent Twitter feed: @jcahealey