FCC ‘Net Neutrality’ Plan Calls for More Power Over Broadband

Federal Communications Commission Chairman Tom Wheeler is laying the groundwork for expanding the agency’s authority over broadband service, people familiar with his thinking say, a move long sought by advocates of stricter regulation of Internet-service providers.

But the plan isn’t expected to satisfy all proponents of “net neutrality” -- the principle that all Internet traffic should be treated equally -- because it would still allow broadband providers to cut deals with content companies for special access to customers. And whatever approach the FCC tries almost certainly will be met with a legal challenge from broadband providers, who would resist giving the agency a heavier hand. Reclassifying broadband to expand the FCC’s authority without explicitly banning broadband providers’ deals would allow the agency to keep such authority in its back pocket to block any arrangements that it views as anticompetitive. He also wants to ensure that the FCC’s final rules, which are expected by year-end, can hold up in court.

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 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. People familiar with the FCC’s thinking say the agency remains skeptical of a flat ban on paid prioritization, noting that even common carriers are allowed to charge for certain specialized services.