FCC reportedly close to reclassifying ISPs as common carriers

Federal Communications Commission Chairman Tom Wheeler is reportedly close to proposing a 'hybrid approach' to network neutrality in which Internet service providers would be partially reclassified as common carriers, letting the commission take a harder stance against Internet fast lane deals.

However, the proposal would not completely outlaw deals in which Web services pay for faster access to consumers.

As reported Thursday by The Wall Street Journal, the broadband service that ISPs offer to consumers would be maintained as a lightly regulated information service. But the FCC would reclassify the service that ISPs offer at the other end of the network to content providers who deliver data over Internet providers' pipes. This would be a common carrier service subject to utility-style regulation under Title II of the Communications Act.

'People close to the chairman' say that Wheeler is 'close to settling on a hybrid approach,' the Journal wrote, continuing:

The plan now under consideration would separate broadband into two distinct services: a retail one, in which consumers would pay broadband providers for Internet access; and a back-end one, in which broadband providers serve as the conduit for websites to distribute content. The FCC would then classify the back-end service as a common carrier, giving the agency the ability to police any deals between content companies and broadband providers.

The emerging plan reflects proposals submitted by the Mozilla Foundation and the Center for Democracy and Technology, though it departs from both in parts. The main advantage of the hybrid proposal, as opposed to full reclassification, is that it wouldn't require the FCC to reverse earlier decisions to deregulate broadband providers, which were made in the hopes of encouraging the adoption and deployment of high-speed broadband. The authors of the new proposal believe that not having to justify reversing itself would put the FCC on firmer legal ground.

The Mozilla Foundation in May proposed a similar approach in a filing with the FCC that we wrote about at the time.

Later in May, the FCC voted for a plan that would not have reclassified ISPs and did not ban fast lane agreements. But the vote was tentative, allowing the FCC to change its mind after gathering public comments.

The proposal Wheeler is considering now 'would leave the door open for broadband providers to offer specialized services for, say, videogamers or online video providers, which require a particularly large amount of bandwidth,' the Journal wrote. 'The proposal would also allow the commission to explore usage-based pricing at some point, in which consumers are charged based on how much data they use and companies are able to subsidize traffic to their websites or applications.'

While not banning prioritization, the plan would 'shift the burden' to ISPs to prove that deals benefit consumers and give FCC officials stronger legal authority to block anticompetitive arrangements.

Verizon, which sued to overturn the FCC's previous net neutrality rules, claimed Thursday that any use of Title II in broadband, even a hybrid approach, would not stand up in court. TechDirt was quick to point out that Verizon embraces Title II in other cases in order to get special treatment from the government.