President Obama to FCC: Reclassify Broadband, Wireless to Title II Common Carrier Regulation; Wheeler "Asks For More Time"

By Jeff Clancy and Russell Frisby

President Obama released a statement on Monday that, if adopted, will have a significant effect on the way carriers, specifically small carriers offer broadband interconnect access services. The President called for the FCC to "create a new set of rules protecting net neutrality and ensuring that neither the cable company nor the phone company will be able to act as a gatekeeper, restricting what you can do or see online."

The President reminded the FCC that the courts "have agreed with the FCC that net neutrality was essential for preserving an environment that encourages new investment in the network, new online services and content, and everything else that makes up the Internet as we now know it."

Recognizing that "[a]n open Internet is essential to the American economy, and increasingly to our very way of life" and stating that "companies who connect you to the world have special obligations not to exploit the monopoly they enjoy", the President urged the FCC and its Chairman Tom Wheeler to protect "net neutrality" by reclassifying broadband Internet access service as a common carrier service subject to regulation under Title II of the Telecommunications Act – while at the same time forbearing from rate regulation and other provisions less relevant to broadband services. The President also asked the FCC to "make these rules fully applicable to mobile broadband."

The President outlined four bright-line rules necessary to achieve this in Monday's statement:

  • No blocking: The Internet service provider cannot block customers from accessing legal content. This ensures that every player gets a fair shot at consumers' business. 
  • No throttling: ISPs should not be able to intentionally slow down some content or speed up others (throttling).
  • Increased transparency: President Obama asks the FCC to make full use of the transparency authority the court recently upheld, and if necessary to apply net neutrality rules to points of interconnection between the ISP and the rest of the Internet. 
  • No paid prioritization: No service should be stuck in a "slow lane" because it does not pay a fee. That kind of gatekeeping would undermine the level playing field essential to the Internet's growth.

    In his statement, President Obama implicitly acknowledged the somewhat unprecedented nature of his request when he noted that not only was the FCC an independent agency, but that, "ultimately this decision is theirs alone." In response, FCC Chairman Wheeler immediately released a statement recognizing the "substantive legal questions" involved and indicating that the President's submission would be incorporated into the record of the Open Internet Proceeding and solicited comments on the proposal. The Chairman's statement also noted that millions of comments had already been received in the proceeding including input from members of Congress from both parties. The Chairman went on to state that, "we need more time to examine these to ensure that whatever approach is taken, it can withstand any legal challenges it may face."

    The President's statement was immediately criticized by parties who oppose Title II regulation. At this point it is unclear what effect the President's statement will have on the FCC's deliberations given the Chairman's indication that more time would be necessary in order to "get the job done correctly."


To discuss how these latest comments may shape broadband interconnect access services and the resulting impact to your business, contact Jeff Clancy, Russell Frisby, William Syverson or your usual Stinson Leonard Street contact.

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