As discussed in an earlier blog post, the U.S. Court of Appeals for the District of Columbia Circuit in January overturned the FCC’s previous iteration of the net-neutrality rules. But the court left room for the FCC to pass new rules that could hold up to a challenge. They even went so far as to lay out just what those rules should look like. Wheeler viewed this as an invitation for the FCC to put new net-neutrality rules in place, and announced plans to do so only weeks after the D.C. circuit court’s decision.
Specifically, Wheeler proposed that the FCC should, first, enhance and enforce the FCC’s transparency rule, the only rule left standing in the wake of the court’s decision. The transparency rule requires ISPs to disclose how they manage network traffic. Second, he proposed passing a new no-blocking rule to replace the one overturned by the D.C. circuit court. The court overturned the original rule because the FCC hadn’t offered proper legal justification for it, but told the FCC how to justify a new rule. Finally, he advocated a new, albeit less restrictive, nondiscrimination rule that would protect small online businesses from being phased out of existence in favor of large companies who can afford to pay ISPs for prioritized access to their customers.
CompTIA’s Take on Wheeler’s Proposal
CompTIA believes all three rules are necessary to protect small businesses. The transparency and no-blocking rule are largely noncontroversial, both legally and politically, and should suffer little resistance on the way to becoming law.
The nondiscrimination rule is a different story entirely. The last nondiscrimination rule was overturned because it didn’t allow for reasonable bargaining flexibility between ISPs and online businesses. The FCC will have to toe a careful line to craft a rule that has enough teeth to protect small businesses, but is not so restrictive that it couldn’t withstand a legal challenge or allow the free market to operate within reasonable guidelines. If it’s not formulated properly, it could very well lead to another lengthy court battle and another two to three years of uncertainty about just how the Internet will be governed.
The FCC is planning to take the next step toward codifying these rules this summer and may release proposed rules as soon as June. CompTIA is planning to work with the FCC throughout the process to ensure that the new net-neutrality rules allow small businesses to continue to compete online.
Matthew Starr is director of public advocacy for CompTIA.
