FCC considers treating cable firms like utilities in net neutrality debate

The top lawyer at the Federal Communications Commission confirmed on Tuesday that the regulator is considering treating cable companies like utilities as it fights off a wave of protest over the future of the internet.

In a live chat on Twitter, Gigi Sohn, the FCC senior counsel for external affairs, said the regulator’s “open internet” proposals, to be published on Thursday, will seek comment on whether broadband internet access should be treated in the same way as electricity, telephone calls or water, where consumers have equal access to the same service.

Sohn’s comments give the clearest indication yet about how the FCC is proposing to rewrite the rules on broadband access in the US, following a January court defeat in a case involving Verizon that challenged its powers to regulate the web.

“Chairman knows free market won't protect open internet. That's why he's proposing new #FCCNetNeutrality rules – none exist today,” wrote Sohn, as thousands of Twitter users bombarded her with questions.

The FCC has faced a mounting backlash from consumer groups and tech firms after chairman Tom Wheeler appeared to signal he was preparing to formalise the creation of a “fast-lane internet” for those able to pay for it. Wheeler has denied that is his intention, but critics charge he has signalled the end to “net neutrality” – the principle that all traffic online is treated equally.

Sohn said the FCC was looking at two legal options for protecting an open internet. The first is Title II of the Communications Act, which would regulate companies like Comcast, Verizon and AT&T to “common carrier” rules.

Common carrier regulations cover telephone communications and require companies to offer the same service to everyone. In 2002, the FCC reclassified broadband as an “information service”, not a “telecommunications service” – paving the way for a decade of legal battles. In January, the FCC’s previous set of broadband rules was struck down in a case with Verizon, a move that paved the way for a tiered service, with cable firms offering faster service for big companies like Netflix.

Apple, Facebook, Google, Twitter and a host of other large and small tech companies have written to the FCC arguing that the current proposals offer a “grave threat to the internet”, in a campaign organised by tech lobbyist Engine Advocacy and New America's Open Technology Institute.

On Tuesday Julie Samuels, executive director of Engine Advocacy, wrote to Wheeler: “The only way to provide the certainty that startups need, and to preserve the internet as an open platform for innovation and economic growth, is to enact a bright­line ban on pay­-to-­play paid prioritization and discrimination against applications. In light of the Verizon decision, reclassification under Title II is the only option that provides a clear path to such a rule.”

“[The] chairman has always been clear that Title II is a viable option,” said Sohn. But Sohn also confirmed the FCC is also looking at Section 706 of the Telecommunications Act, which gives the FCC authority to regulate broadband on a case by case basis. Wheeler has said he would block any deals that are not “commercially reasonable”.

Reclassifying broadband under Title II will inevitably lead to further legal battles with cable firms, which are already pushing for less regulation and are likely to get the support of the two Republican commissioners on the FCC’s five-member panel.

But critics charge that using 706 will be a weaker option and is likely to lead to legal challenges on individual cases as cable firms push to offer tiered, premium priced services like the one Netflix recently struck with Comcast.

Craig Aaron, the chairman of Free Press, said: “The cable firms will sue either way. My concern with 706 is that I don’t think it will allow the FCC to stop online discrimination. I just don’t think it’s legally sustainable for the FCC to block deals on a case-by-case basis.”

Sohn said the FCC was considering 706 because the Verizon decision “gave us a roadmap, and the chairman believes it can be an effective path forward.”

But she confirmed the public backlash had led the FCC to look more closely at all its options: “Draft proposal reflects public input several ways, most noticeably more fulsome discussion of Title II,” she wrote.

The FCC has been inundated with comments and emails before Thursday’s meeting. Over 1m people have emailed the regulator calling for tougher rules to protect net neutrality. Protesters have set up and Occupy-style camp outside the FCC’s headquarters.

During Sohn’s hour-long Twitter conversation, the regulator’s hashtag, #FCCNetNeutrality, became the highest trending hashtag on Twitter. Thousands of questions and comments were submitted. Senator Bernie Sanders tweeted: “We must not let corporations turn profits by putting a price tag on the free flow of ideas.”

Broadband for America, a lobby group for cable companies, tweeted: “28 broadband CEOs urge @FCC to protect #openinternet: Title II will impede investment.”

Sohn said the FCC would use Twitter again to discuss the proposals once they have been published.

The FCC’s commissioners will discuss the new proposals Thursday. If adopted, the public and other interested parties will have until the end of September to comment and a decision is expected by the end of the year.