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Obama Urges FCC to Take Controversial Approach to Net Neutrality

Obama recommended that the FCC reclassify broadband as a telecom service rather than an information service.

By Chloe Albanesius
November 10, 2014
Net Neutrality

Are you ready for a net neutrality battle royale?

President Obama today called on the Federal Communications Commission to develop "the strongest possible rules to protect net neutrality." To accomplish that, the president recommended that the agency take the controversial step of re-classifying broadband as a telecom service rather than an information service.

The approach, also known as Title II or common carrier, would give the FCC more authority over broadband providers than it has today, but it's a highly contentious issue and likely faces a huge fight from ISPs.

The National Cable and Telecommunications Association (NCTA), which represents the country's largest ISPs, quickly said it was "stunned" by the president's announcement.

"We are stunned the President would abandon the longstanding, bipartisan policy of lightly regulating the Internet and calling for extreme Title II regulation," NCTA president and CEO (and former FCC chairman) Michael Powell said in a statement.

"The cable industry strongly supports an open Internet, is building an open Internet, and strongly believes that over-regulating the fastest growing technology in our history will not advance the cause of Internet freedom," Powell continued. "There is no dispute about the propriety of transparency rules and bans on discrimination and blocking. But this tectonic shift in national policy, should it be adopted, would create devastating results."

In its own statement, Comcast echoed the NCTA's concerns.

"To attempt to impose a full-blown Title II regime now, when the classification of cable broadband has always been as an information service, would reverse nearly a decade of precedent, including findings by the Supreme Court that this classification was proper," the company said. "This would be a radical reversal that would harm investment and innovation, as today's immediate stock market reaction demonstrates. And such a radical reversal of consistent contrary precedent should be taken up by the Congress."

Obama, meanwhile, said the net neutrality rules should also apply fully to mobile. "The rules also have to reflect the way people use the Internet today, which increasingly means on a mobile device," he said. "I believe the FCC should make these rules fully applicable to mobile broadband as well, while recognizing the special challenges that come with managing wireless networks.

Meredith Attwell Baker, head of wireless industry trade association CTIA (and a former FCC commissioner), said that "imposing antiquated common carrier regulation, or Title II, on the vibrant mobile wireless ecosystem would be a gross overreaction that would ignore the bipartisan views of members of Congress and the FCC, would impose inappropriate regulation on a dynamic industry, and would threaten mobile provider's ability to invest and innovate, all to the detriment of consumers."

It's not a given that the FCC will actually take the reclassification route. As Obama pointed out, "the FCC is an independent agency, and ultimately this decision is theirs alone."

In a statement, FCC's Chairman Tom Wheeler said Obama's position "is an important and welcome addition to the record of the Open Internet proceeding."

"As an independent regulatory agency we will incorporate the President's submission into the record of the Open Internet proceeding," Wheeler said. "We welcome comment on it and how it proposes to use Title II of the Communications Act."

Opting for Title II is largely considered a last resort. After all, the road to classifying Internet as an information service went all the way to the Supreme Court in 2005 via the Brand X case. So reversing that decision would probably prompt a lengthy legal and political battle.

But the FCC is currently in a tough position and searching for a way to enact net neutrality rules that will not be struck down by the courts. The commission passed net neutrality rules in 2010, but was later sued by Verizon, which argued that the FCC did not have the authority to regulate such issues.

Earlier this year, a court agreed with Verizon, though it said the issue was an important one the FCC should tackle - if it took the right legal approach.

Since then, the agency has been trying to come up with rules that will withstand a legal challenge. Most controversially, it proposed rules that would allow for paid prioritization in certain circumstances, which is basically the antithesis of net neutrality. After some backlash, the FCC simply asked the public for its thoughts on whether paid prioritization should be part of its rules rather than opening a rulemaking with set restrictions.

More recently, a hybrid approach to satisfy all sides was broached. For more on that, see the video below.

Today, President Obama said plainly that he does not back paid prioritization. "Simply put: No service should be stuck in a 'slow lane' because it does not pay a fee," the White House said. "That kind of gatekeeping would undermine the level playing field essential to the Internet's growth. So, as I have before, I am asking for an explicit ban on paid prioritization and any other restriction that has a similar effect."

Whatever the FCC decides, it probably won't happen this year. "The more deeply we examined the issues around the various legal options, the more it has become plain that there is more work to do," Wheeler said today.

"The reclassification and hybrid approaches before us raise substantive legal questions," he continued. "We found we would need more time to examine these to ensure that whatever approach is taken, it can withstand any legal challenges it may face."

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About Chloe Albanesius

Executive Editor for News

I started out covering tech policy in Washington, D.C. for The National Journal's Technology Daily, where my beat included state-level tech news and all the congressional hearings and FCC meetings I could handle. After a move to New York City, I covered Wall Street trading tech at Incisive Media before switching gears to consumer tech and PCMag. I now lead PCMag's news coverage and manage our how-to content.

Read Chloe's full bio

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