After months of cryptic messages ostensibly in support of new open Internet rules (a policy colloquially known as “net neutrality”), on November 10th, President Obama issued a formal policy statement on the Federal Communications Commission’s (“FCC’s” or the “Commission’s”) Open Internet Notice of Proposed Rulemaking (“NPRM”). In his statement, the President called for the Commission to reclassify broadband Internet access service (including mobile broadband) as a telecommunications service under Title II of the Communications Act of 1934, as amended.
While the President’s action was significant – particularly because of the specificity of the proposal – it is unclear how it will affect the ultimate rules that the Commission adopts. First, it appears that Chairman Wheeler has not fully embraced Title II as a viable option, given the competing interests of ISPs, content providers, and Internet users. The Commission recently floated a “trial balloon” compromise that would reclassify back-end broadband connections under Title II, but would leave last-mile consumer broadband unregulated. After the President’s statement, it appears that this is still Chairman Wheeler’s preferred approach. Second, Chairman Wheeler must consider how the large providers will respond to the Commission’s rules, since both AT&T and Verizon have indicated that they will appeal any Commission attempt at reclassification. Third, Chairman Wheeler must contend with a Republican-controlled Congress, which may seek a legislative fix in the event that the Commission reclassifies broadband, including de-funding some Commission activities.
At base, the President’s action makes it more complicated for the Commission and Commissioners, who had aimed to complete the rulemaking process by the end of the year. Nevertheless, it remains to be seen whether the President’s strong stand in favor of Title II reclassification will alter the Commission’s course.